A federal judge in Texas has declared that an all-male military draft is unconstitutional, ruling that “the time has passed” for a debate on whether women belong in the military.
The decision deals the biggest legal blow to the Selective Service System since the Supreme Court upheld the draft registration process in 1981. In Rostker v. Goldberg, the court ruled that a male-only draft was “fully justified” because women were ineligible for combat roles.
But U.S. District Judge Gray Miller ruled late Friday that while historical restrictions on women serving in combat “may have justified past discrimination,” men and women are now equally able to fight. In 2015, the Pentagon lifted all restrictions for women in military service.
The case was brought by the National Coalition For Men, a men’s rights group, and two men who argued an all-male draft was unfair.
Men who fail to register with the Selective Service System at their 18th birthday can be denied public benefits such as federal employment and student loans. Women cannot register for Selective Service.
The ruling comes as an 11-member commission is studying the future of the Selective Service System, including whether women should be included or whether there should continue to be draft registration at all. The U.S. has maintained an all-volunteer military after the draft was discontinued in 1973, but the Selective Service System was reactivated in 1980 as a contingency in case military conscription becomes necessary again.
The National Commission on Military, National and Public Service released an interim report last month giving no hints on where it would come down on those questions. But, commission chairman Joe Heck told USA TODAY, “I don’t think we will remain with the status quo.”
The government had argued that the court should delay its ruling until that commission makes its recommendations. But Miller said Congress has been debating the issue since 1980, and the commission’s final report won’t come until next year. And because the commission is advisory, there’s no guarantee Congress will act, he said.
Miller said Congress has never fully examined whether men are physically better able to serve than women. In fact, he noted in a footnote, “the average woman could conceivably be better suited physically for some of today’s combat positions than the average man, depending on which skills the position required. Combat roles no longer uniformly require sheer size or muscle.”
Quoting the Supreme Court’s ruling overturning bans on same-sex marriage, Miller ruled that restrictions based on gender “must substantially serve an important governmental interest today.”
The judge denied the government’s request for a stay of the ruling. Justice Department officials did not immediately respond to a request for comment.
But the ruling came in the form of a declaratory judgment and not an injunction, meaning the court didn’t specifically order the government how to change Selective Service to make it constitutional.
“Yes, to some extent this is symbolic, but it does have some real-world impact,” said Marc Angelucci, the lawyer for the men challenging the Selective Service System. “Either they need to get rid of the draft registration, or they need to require women to do the same thing that men do.”