One Federal District Court Judge Says, “Unconstitutional.” What Next?
BY DEBORAH H. KARPATKIN
On February 22, 2019, the legal landscape shifted on male-only draft registration. Senior District Court Judge Gray Miller granted summary judgment for plaintiffs in a case challenging the constitutionality of the Military Selective Service Act (MSSA), ruling that the MSSA violated the Fifth Amendment’s Equal Protection Clause by requiring men, but not women, to register for the draft. Nat’l Coal. for Men v. Selective Service System.
The MSSA requires, generally, that “every male person residing in the United States … between the ages of eighteen and twenty-six” must register with the Selective Service System (SSS).2 After registering, men have a continuing obligation to update the SSS with any changes in their address or status. Failure to comply can result in fines or imprisonment, along with denial of education loans and other government benefits.
This article offers an overview and analysis of the case, some thoughts about what may follow from the decision, and some guidance to those who counsel persons regarding draft registration.
OVERVIEW AND ANALYSIS
A. Background: The Military Selective Service Act, Rostker v. Goldberg, Women in Combat, and the Commission
The Military Selective Service Act.4 The draft, and draft registration, was discontinued in 1975. In 1980, President Carter reactivated the draft registration process, prompted by the Soviet armed invasion of Afghanistan. President Carter recommended that Congress amend the MSSA to permit the registration and conscription of women as well as men. Congress rejected that recommendation. It allocated the funds necessary only to register males, and declined to amend the MSSA to permit the registration of women.
Rostker v. Goldberg.6 In this 1981 decision, the Supreme Court, by a vote of 6-3, rejected plaintiffs’ claims that the MSSA was unconstitutional because it did not require women to register for the draft. In reaching this decision, the Court’s analysis stressed: (1) the Court’s consistent deference to legislative and executive judgments regarding military affairs, as evident in abundant Supreme Court precedent; and (2) the fact that women could not serve in military combat, along with the testimony of military leaders that registering (and inducting) women who could not serve in combat would burden military effectiveness.
Rostker acknowledged that heightened scrutiny applied to this gender-based classification. The court cited Craig v. Boren,7 requiring that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” The Court rejected as a “facile abstraction” the government’s argument for a special kind of scrutiny applicable to the military, notwithstanding the Court’s deference to military decision-making. But, while noting that “deference does not mean abdication,” the Court unsurprisingly concluded that raising armies is an “important governmental interest.” Because women court not serve in combat roles, and Congress determined that any future draft, which would be facilitated by the registration scheme, would be characterized by a need for combat troops,” the Court concluded that Congress’ reasons for excluding women from draft registration were not “unthinking” or “reflexive.”8
Accordingly, the Court concluded that the exclusion of women from draft registration, was “not only sufficiently but closely related to Congress’ purpose in authorizing registration.9 Citing Schlesinger v. Ballard,10 The Court determined that “the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in this case.” Because women and men are not similarly situated, the Court found no Due Process Clause violation: “The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality.”11
Justice White (joined by Justice Brennan), and Justice Marshall (also joined by Justice Brennan) dissented.12
Women in Combat. In 2013, the Department of Defense officially lifted the ban on women in combat.13 In 2015, the Department of Defense lifted all gender-based restrictions on military service.14 But in the 2016 National Defense Reauthorization Act, Congress removed a proposal to
declined to dismiss the case, it lay dormant for several years. It was eventually revived, and in Goldberg v. Rostker, 509 F. Supp. 586 (E.D. Pa. 1980), a three-judge court ruled for plaintiffs, holding that the MSSA violated the Fifth Amendment, because the complete exclusion of women from draft registration did not serve an important government interest and was not substantially related to an important government interest. It enjoined the government from requiring class members to register under the MSSA. Rostker v. Goldberg, 453 U.S. at 61, FN2.
- Craig v. Boren, 429 U.S. 190 (1976).
- Rostker, at 70, 72.
- Rostker, 453 U.S. at 79. 10 419 U.S. 498 (1975)
- Rostker, 453 U.S. at 79.
- 453 U.S. at 86-113.
- January 24, 2003 Memorandum for Secretaries of the Military Departments, http://archive.defense.gov/news/WISRJointMemo.pdf, last visited February 26, 2019
- https://dod.defense.gov/News/Article/Article/632536/carter–opens–all–military–occupations–positions–towomen/ last visited February 26, 2019.
extend draft registration for women, instead creating the National Commission on Military, National and Public Service.
The National Commission on Military, National and Public Service (“the Commission”). The Commission was created “to consider whether Congress should modify or abolish the current draft registration requirements.” For a detailed report on the work of the Commission, please see the article by Edward Hasbrouck, also in this issue.
B. The NCFM Decisions
Procedural History. In 2013, plaintiffs National Coalition for Men and James Lesmeister (not an NCFM member) brought suit in the Central District of California, arguing that because women may now participate in combat, Rostker v. Goldberg, which upheld male-only draft registration, was no longer good law.
After dismissal by the California district court on ripeness grounds, the Ninth Circuit reversed and remanded.18 On remand, the California district court granted defendants’ motion to dismiss, concluding that NCFM lacked organizational standing. Because plaintiff Lesmeister did not reside in the Central District of California, the district court determined that venue was improper, and transferred the case to the Southern District of Texas, where Lesmeister resided.
The NCFM 2018 Decision: Standing (NCFM I). In the Southern District of Texas, plaintiffs added Anthony Davis, a member of NCFM, as a plaintiff. By order dated April 6, 2018, the district court denied defendants’ motion to dismiss, concluding that Lesmeister and Davis had standing because they had suffered an injury in fact from MSSA’s male-only registration requirement. The district court defined plaintiffs’ “injury in fact” as arising not from the alleged constitutional violation, but from the burdens of draft registration, and the penalties for non-compliance: “both have a continuing obligation to update the SSS with changes to their information. That obligation, paired with the requirement to register with the SSS, constitutes an injury sufficient for Article III standing.”
Because Davis was a member of NCFM, and has standing to sue in his own right, the court ruled that NCFM had associational standing.20
The NCFM 2019 Decision: Ripeness, Separation of Powers (NCFM II). The parties made crossmotions for summary judgment. Before reaching the merits of plaintiffs’ equal protection claims, defendants tried to persuade the court to punt, and not reach the merits. Defendants asserted that the case was not ripe for decision until the Commission issues its report, and Congress has the opportunity to act; that the court had to defer to Congress, on separation of powers grounds; and that the court had inherent power and discretion to stay proceedings.
The district court was not persuaded. It held that plaintiffs’ claims were ripe for decision. The Commission was not due to issue its final report until 2020 and no legislation to add women to draft registration was currently pending. The issue was ripe for decision because plaintiffs showed hardship, in having to comply with the MSSA, and in experiencing its discrimination.
The district court rejected defendants’ separation of powers argument, concluding that it was not required to defer to Congress, citing Rostker, and noting that “Congress does not receive ‘blind deference in the area of military affairs.’”
Finally, the district court rejected defendants’ argument that it should exercise its “inherent power” to stay the case. While defendants argued that a decision on the merits would be disruptive of the Commission’s work, possibly render the Commission’s work moot, and possibly require significant expenditures for compliance, the district court was not persuaded, noting that the case could be stayed indefinitely while waiting for Congress to act on the Commission’s recommendations; that the Commission is not obligated to recommend any particular outcomes; and the Congress is not obligated to act the Commission’s recommendations.
Distinguishing Rostker. Turning to the merits, the district court crucially concluded that Rostker was not controlling, because women were no longer barred from combat service. When Rostker was decided, “men and women, because of the combat restriction, [were] simply not similarly situated for purposes of a draft or registration for a draft” and for that reason, the decision to authorize registration only for men was not unconstitutional. “The dispositive fact in Rostker – that women were ineligible for combat – can no longer justify the MSSA’s gender-based discrimination.”24
Equal Protection Standard of Review. Defendants argued for a standard of review lower than strict or intermediate scrutiny, arguing that Rostker applied what amounted to rational basis review. The district court rejected this reading of Rostker, and, per Schlesinger v. Ballard, applied the “intermediate scrutiny” required for gender-based discrimination, albeit with deference due to Congress in military matters.
Going on to the equal protection analysis itself, the district court conducted a detailed, carefully reasoned review of the pernicious nature of laws which treat women and men differently, and of the legal authority rendering those laws unconstitutional.
Raising Armies, or Raising Combat Troops? The district court framed its inquiry narrowly: whether
“the MSSA’s male-only registration requirement is substantially related to Congress’s important objective of drafting and raising combat troops.” Looking to the text of the National Defense Authorization Act, the district court noted that “Congress still understands the draft, as it currently exists, to be for the ‘mass mobilization of combat troops.’” In doing so, the district court rejected defendants’ argument for the broader objective: “raising and supporting armies.”
Substantially related? The district court rejected defendants’ arguments that the MSSA’s male-only registration requirement is substantially related to drafting and raising combat troops. The district court rejected defendants’ argued distinction between “eligibility” for combat roles, and conscription into combat roles. Quoting Schlesinger: it “smacks of archaic and overbroad generalizations about women’s preferences,” by assuming “that women are significantly more combat-averse than men.”
Administrative Convenience? The district court also rejected defendants’ administrative convenience argument – that by registering only men, Congress sought to avoid administrative problems caused by “women’s different treatment with regard to dependency, hardship, and physical standards.” According to defendants, it would be inefficient to draft thousands of women when only a small percentage would be physically qualified for combat. This argument was not supported by the record, and did not persuade the district court. Instead, quoting Rostker, the district court treated this argument as “an accidental by-product of a traditional way of thinking about females,” commenting that for today’s combat roles, the average women could conceivably be better suited physically than the average man.
Declaratory Judgment, Not Injunction. The district court’s grant of summary judgment to plaintiff amounts to a declaration that the MSSA unconstitutionally excludes women from registration. The district court declined to grant injunctive relief, because, while sought in the complaint, it was not briefed by plaintiffs. As of this writing, no notice of appeal or application for a stay has been filed by the Government, but both can be expected. The significance of this: while male-only draft registration has been declared unconstitutional, but because no injunction was issued, the law is still in effect.
Appeal? While no notice of appeal has yet been filed, the government will likely appeal to the Fifth Circuit, a reliably friendly venue for the government. The government may seek a stay – though without an injunction, the government may conclude that a stay is not needed.
What’s likely to happen on appeal? The track record isn’t good for plaintiffs who challenge military decision-making on constitutional grounds. Typically, deference to military decision-making defeats an otherwise meritorious constitutional challenge. See, e.g., Goldman v. Weinberger (deference to military decision-making in rejecting First Amendment challenge brought by military doctor barred by military regulations from wearing yarmulke); “[Judicial] deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged (citing Rostker).” 29
Does “Deference to Military Decision-Making” Defeat “Archaic and Stereotypical Notions” of Gender Roles? Notwithstanding the long jurisprudential history of deference to military decisionmaking, the legal and social arguments in favor of gender equality are now well established. In 1981, when Rostker was decided, the Supreme Court could avoid undercutting its growing jurisprudence on gender equality with the convenient fact that women were then excluded from combat. Today, that convenient fact is gone. As Linda Greenhouse points out in a recent New York Times article,30 the district court’s greatest contribution is its unsparing rejection of the “archaic and stereotypical notions” regarding women and military service. In doing so, the district court traced the jurisprudential arc: from Reed v. Reed31(1971) and Frontiero v. Richardson32 (1973), both argued by then ACLU Women’s Rights Project lawyer Ruth Bader Ginsburg, to Justice O’Connor’s 1982 opinion in Mississippi University for Women v. Hogan, the source of the phrase “archaic and stereotypic notions,”33 to Justice Ginsburg’s 1996 opinion in United States v. Virginia, declaring unconstitutional Virginia Military Institute’s exclusion of women, because any justification for excluding one sex or the other “must not rely on overbroad generalizations about the different talents, capacities or preferences of males or females.”34
Amicus? Not yet. From the docket sheets, no mainstream civil rights organizations have aligned themselves with the NCFM plaintiffs. By contrast, the ACLU represented plaintiffs in Rostker, and many organizations participated as amicus including, inter alia, Men’s Rights Inc., the National Organization for Women; and the Women’s Equity Action League Educational and Legal Defense Fund.35 That could of course change when the case moves up to the Fifth Circuit, or to the Supreme Court.
GUIDANCE FOR ADVOCATES AND COUNSELORS
Notwithstanding the limitations discussed above, the decision, alongside the Commission’s hearings, brings welcome air and sunshine into the decades-long debate about whether draft registration is necessary, and, if so, whether it should include women and well as men. More 18 year olds, and their parents, may be seeking guidance. Here are some likely questions, and suggested responses.
Do women now have to register for the draft? Are men excused from registering? No, and no. No injunctive relief was granted, so the males-only law is still in effect. Mandating registration for
- 475 U.S. 503, 508 (1986). For additional examples of judicial deference to military decision-making, see Chappell v. Wallace, 462 U.S. 296, 300-305 (1983) (racial discrimination); 444 U.S. 348, 357, 360 (1980) (free expression); Middendorf v. Henry, 425 U.S. 25, 43 (1976) (right to counsel in summary court-martial proceedings); Schlesinger v. Councilman, 420 U.S. 738, 753 (1975) (availability of injunctive relief from an impending court-martial); Parker v. Levy, 417 U.S. 733, 756 (1974) (due process rights and freedom of expression). Solorio v. United States, 483 U.S. 435, 447-48, 107 S. Ct. 2924, 2931 (1987).
- “Why R.B.G. Matters,” by Linda Greenhouse, New York Times 2/28/19, https://nyti.ms/2NAnvhI
- 404 U.S. 71 (1971)
- 411 U.S. 677 (1973)
- Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982)
- 518 U.S. 515, 533, (1996)
- Rostker, 452 U.S. at 58
What about collateral legal consequences for non-registrants? In Selective Service System v.
Minnesota Public Interest Research Group, 37 the Supreme Court rejected plaintiffs’ challenge to the MSSA’s denial of federal educational financial assistance as a non-registration penalty, concluding that the penalties did not function as an unlawful bill of attainder, and did not violate the privilege against self-incrimination. This is still good law. However, the NCFM decision may provide a new legal basis for challenge to these collateral consequences. If male-only draft is unconstitutional, does that render the collateral consequences of non-registration also unconstitutional? The Center on Conscience & War offers additional guidance on the legal consequences faced by non-registrants.
Does this Decision Matter? Yes! Courts are not the only arbiters of the law. Congress counts. People count. Even if the Fifth Circuit (or the Supreme Court) upholds a male-only draft, the public may feel otherwise. If nothing else, the NCFM decision offers a roadmap for why any draft registration scheme should treat men and women equally. In 2020, after the Commission finishes its report, Congress will have an opportunity to act. Some will advocate for no registration at all, or for a registration scheme that treats men and women equally. Other perniciously unfair military policies – for example, DADT, or the rule barring yarmulkes in air force uniforms – eventually yielded to changes in the law. As some have suggested, draft registration for women, if legally required, but so politically unpalatable that Congress may prefer to have no draft at all. As Linda Greenhouse observes, “Where the government’s interest actually lies, though, is far from clear. The military has no appetite for reinstating a draft, which ended in 1973. Women now make up 16 percent of the enlisted forces and 18 percent of the officer corps. The culture wars have moved on to other targets.”
First, the district court decision provides a roadmap for legal re-consideration of the current maleonly draft registration process: it frames Rostker as legally obsolete because it is tied factually to women’s ineligibility for combat. Second, the district court decision provides a roadmap for advocates to challenge the current male-only draft registration process. Finally, the district court decision provides some support for those who oppose any form of draft registration. More may become clear as NCFM moves forward on appeal, and as the Commission continues, and concludes, its work.
Deborah Karpatkin is a civil rights and employment rights lawyer in New York City.
 The case has multiple decisions. The 2018 Texas federal court decision is referred to in this article as NCFM I,
Nat’l Coalition for Men v. Selective Serv. Sys., 2018 U.S.Dist. LEXIS 59404 at *7 (S.D. Tx. April 4, 2018). The
February 2019 decision is referred to as NCFM II, Nat’l Coal. for Men v. Selective Serv. Sys., 2019 U.S. Dist. LEXIS 28851 (S.D. Tex. Feb. 22, 2019) 2 50 U.S.C. §3802(a).
 NCFM I at *7, Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 843 (1984); https://www.sss.gov/Registration/Why–Register/Benefits–and–Penalties (last visited February 28, 2019) 4 50 U.S.C. §451 et seq.
 Rostker v. Goldberg at 59-61.
 U.S. 57 (1981). Interestingly, Rostker v. Goldberg’s genesis was in a lawsuit filed in 1971 in the Eastern District of Pennsylvania, Rowland v. Tarr. Plaintiffs alleged, inter alia, that the MSSA impermissibly discriminated between males and females. The Third Circuit did not dismiss the discrimination claim, and remanded to the district court, which concluded that the discrimination claim was substantial enough to warrant convening of a three-judge court, and that plaintiffs had standing to sue. After the three-judge court
 NCFM II at *5-*6.
 NCFM II at *4.
 According to its website, the National Coalition for Men is a nonprofit organization founded in 1977, to “promote awareness of how gender based expectations limit men legally, socially and psychologically.” Some characterize the organization as anti-feminist. See, e.g., https://www.salon.com/2018/05/07/mentoo–are–guysthe–real–victims–of–sexism–well–no–but–some–want–to–claim–it–anyway/ (last visited February 27, 2019). In its press release regarding the decision in NCFM II, NCFM said: “Forcing only males to register is an aspect of socially institutionalized male disposability and helps reinforce the stereotypes that support discrimination against men in other areas such as child custody, divorce, criminal sentencing, paternity fraud, education, public benefits, domestic violence services, due process rights, genital autonomy, and more.” https://ncfm.org/2019/02/news/selective–service/ncfm–wins–case–against–the–selective–service–system–torequire–women–to–register/ (last visited February 28, 2019) 18 640 F. App’x (9th Cir. 2016).
 Nat’l Coalition for Men v. Selective Serv. Sys., 2018 U.S.Dist. LEXIS 59404 at *7 (S.D. Tx. April 4, 2018)(“NCFM I”) 20 Id. at *8-9.
 NCFM II at *8, citing Rostker, 453 U.S. at 67.
 NCFM II at *9-*11.
 Rostker, id. at 78-79. 24 NCFM II at *14.
 NCFM II at *18, quoting the National Defense Authorization Act, Pub. L. No. 114-328, §552(b)(4), 130 Stat. at 2131.
 NCFM II at *19, quoting Schlesinger, 419 U.S. at 507-508.
 NCFM II at *25 and FN 6, quoting Rostker at 74.
 The Supreme Court is likely to grant a stay, even if plaintiffs prevail on appeal. See, e.g., Log Cabin Republicans v. United States, 562 U.S. 1038(2010)(refusing to vacate 9th Circuit’s stay of decision invalidating military “Don’t Ask Don’t Tell” policy.)
 NCFM’s press statement erroneously states that “women will be required to register with the Selective Service.” https://ncfm.org/2019/02/news/selective–service/ncfm–wins–case–against–the–selective–servicesystem–to–require–women–to–register/ (last visited February 28, 2019).
 U.S. 841 (1984).
 These laws, commonly called “Solomon” laws after the member of Congress who first introduced them, mandated non-registrants be denied college federal financial aid; federal job training; medical student financial aid; employment with federal executive agencies; and U.S. Citizenship to immigrants. http://www.centeronconscience.org/co/conscientious–objection–and–the–draft/320–selective–serviceregistration–coercion–of–conscience.html (last visited February 27, 2019)