NCFM update on our lawsuit against the Selective Service System (“the draft”)

On April 14, 2016, the 9th Circuit Court of Appeals issued a “Mandate” in the Selective Service Case. That means the government did not file a request for re-hearing, and so the case was remanded back to the trial court per the instructions in the decision reversing the lower court’s decision.

In short, we won the appeal and we are waiting for the lower court to set a hearing or further briefing schedule. The court gave the Selective Service until June 13, 2016 to file their response to our complaint, which they failed to do.

Unless Congress remedies the situation by requiring all young men and women to register our case will eventually move forward, we just do not know when. As you may know, one related bill initiated by the House of Representatives failed last month, though it may resurrect in another form. It is our understanding that some members of Congress have dug in their heels in opposition to requiring women to register, which of course is not the only remedy available. Congress could end the “draft,” disband it completely or redesign the Selective Service System in a myriad of ways, like acknowledging that the draft can be for non-combat roles as well – even now all military men and women are not assigned or even able to fulfill combat roles.

Thus far, the military has not made the argument that women cannot handle certain combat roles; and, the fact that the military is opening all combat roles to women defeats issues about the weight of backpacks, lack of upper body strength and so on. If the government argues women cannot handle certain combat roles, the glaring fact remains that neither can men. Recall that our case only technical jurisdictional grounds, not its merits, nothing substantive. We should be on solid ground considering (1) the Equal Protection clause; (2) the Department of Defense opening of all combat roles to women; and, (3) the fact that the draft can be for non-combat roles as well.

BACKGROUND:

After losing our lower court case, the Ninth Circuit set December 8, 2015 for oral argument for National Coalition For Men’s (NCFM) case requiring women to register for the draft

NCFM filed the equal protection case against the U.S. Selective Service System after Department of Defense (DOD) Secretary of Defense Leon E. Panetta and Chairman of the Joint Chiefs of Staff Martin E. Dempsey issued a Memorandum on January 24, 2013, officially rescinding the 1994 ban on women in combat. The Los Angeles federal District Court dismissed the lawsuit ruling it was not “ripe,” because the military had not yet decided how to implement DOD’s order. NCFM’s appeal argues the case is indeed ripe because women now hold many combat-related positions, but only men are required to register and face life-altering penalties and consequences if they do not register with the Selective Service.

We disagreed and the United States Court of Appeals for the Ninth Circuit heard oral argument on December 8, 2015, to decide whether women must register for the military draft now that the Department of Defense earlier ordered the military to allow women in combat. The lawsuit claims the Military Selective Service Act violates the Equal Protection Clause of the United States Constitution because the Act specifically refers to only “male persons” in describing who must register and who would be drafted.

The constitutionality of excluding women from the draft was tested in the 1981 U.S. Supreme Court case of Rostker v. Goldberg, which ruled that registering only men for the draft did not violate the Equal Protection Clause of the Constitution, because women were not eligible for combat. However, on January 24, 2013, following a unanimous recommendation by the Joint Chiefs of Staff, former Defense Secretary Leon Panetta announced the end of the direct ground combat exclusion rule for female service members.

On October 12, 2015, Army Secretary John McHugh said as women take on more combat roles in the Army, they would likely have to register for the draft. Mr. McHugh maintained that if “true and pure equality” is the U.S. military’s goal, then it is likely women will have to register for the draft. In addition, the Defense Advisory Committee on Women in the Services, an advisory group to current Defense Secretary Ash Carter, has advised Secretary Carter to ask Congress to change the Military Selective Service Act to require women to register for the draft. Furthermore, the Selective Service System’s website reports that if given the mission and modest additional resources, it can register and draft women with its existing infrastructure.

Regardless, registering for Selective Service does not necessarily mean a registrant will serve in the military, but failing to register is a felony punishable by a fine of up to $250,000 or a prison term of up to five years, or a combination of both. Failing to register also disqualifies the offenders, now only men – even disabled men, from federal jobs, job training, and student aid, and face state penalties as well. We believe that if women can volunteer for military careers without being penalized for failing to register for the draft, then men should not be penalized either.

A similar case has been filed by several women against the Selective Service System in the United States District Court for the District of New Jersey, wherein the female plaintiffs are also suing under the Equal Protection Clause of the United States Constitution. They are suing for not being allowed to register for the military draft now that the Department of Defense has removed the restriction against women in combat. That case is Allison Marie Kyle v. Selective Service System, Case No. 2:15-cv-05193-ES-JAD.

Women should be required to register for the Selective Service System too!