National Coalition for Men v. Selective Service System
|National Coalition for Men v. Selective Service System|
|Court||United States District Court for the Southern District of Texas|
|Full case name||National Coalition for Men, et al. v. Selective Service System, et al.|
|Decided||February 22, 2019|
|Counsel for plaintiff(s)||Marc Angelucci|
|Judge(s) sitting||Gray H. Miller|
National Coalition for Men v. Selective Service System is an ongoing court case that was first decided in the United States District Court for the Southern District of Texas on February 22, 2019, declaring that requiring men but not women to register for the draft for military service in the United States was unconstitutional. The ruling did not specify which actions the government must take to resolve the conflict with the constitution (e.g., whether to abolish the draft registration requirement or apply it in a gender-neutral manner). That ruling was reversed by the Fifth Circuit. The U.S. Supreme Court has been asked to review the decision by the Court of Appeals.
In the United States, men between the ages of 18 and 25 and residing in the country, with limited exceptions, are required to sign up and maintain their registration in the Selective Service System, established by the Military Selective Service Act. Failure to register or maintain that can lead to fines and prison, and prevents one from several government benefits such as federally-backed student loans or employment in the federal sector. Women, who are not required to serve involuntarily, are not required to register. At the time it was established, the military did not allow women to serve in combat roles. The law was challenged on the basis of gender discrimination, leading to the Supreme Court case Rostker v. Goldberg. In that 1981 case, the Supreme Court ruled that the practice of requiring only men to register for the draft was constitutional on the basis that women were restricted from serving in combat roles.
Between 2013 and 2015, the Pentagon abolished their restrictions on women voluntarily serving in combat roles. Based on these changes, the National Coalition for Men, a non-profit men's rights organization, filed a lawsuit against the Selective Service System in the United States District Court for the Central District of California on April 4, 2013, arguing that with the Pentagon's change in female participation in combat roles, the rationale behind Rostker no longer applied, and the male-only requirement of the Selective Service System was gender-discriminatory. In 2016, the U.S. Court of Appeals for the Ninth Circuit reversed the district court's dismissal of the case and remanded the case back to the district court. The case was later moved to the United States District Court for the Southern District of Texas in the 5th Circuit.
In 2016, through a provision in the National Defense Authorization Act for Fiscal Year 2016, the Congress created the National Commission on Military, National, and Public Service, an independent bipartisan advisory commission tasked with evaluating the Selective Service System and recommending whether women should be required to register with the Selective Service, or potentially do away with the Selective Service System to avoid the gender inequality issue. On January 23, 2019, the Commission released an interim report outlining the various options. On March 25, 2020, after holding various public hearings, the Commission issued its final report, recommending that as long as the Selective Service System exists, both men and women should be subject to mandatory draft registration.
The National Coalition for Men argued in part: "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." Opponents of the status quo also argued that current conscription laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution via reverse incorporation because the law treats men and women differently.
On February 22, 2019, Judge Gray H. Miller issued a declaratory judgement that the male-only registration requirement of the MSSA violates the Due Process Clause of the Fifth Amendment to the United States Constitution, since the restrictions on women serving in combat roles in the military, which were present at the time of the decision in Rostker, no longer applied and men and women are, therefore, similarly situated for purposes of a draft or registration for a draft.
The ruling was appealed to the United States Court of Appeals for the Fifth Circuit. The Eagle Forum filed an amicus curiae brief supporting continued registration of men for the draft, opposing requiring women to register, and asking the Court of Appeals to overturn the District Court decision. A coalition including the American Civil Liberties Union Foundation of Texas, American Civil Liberties Union, 9to5 National Association of Working Women, A Better Balance, Gender Justice, KWH Law Center for Social Justice and Change, National Organization for Women Foundation, National Women’s Law Center, Women’s Law Center of Maryland, and Women’s Law Project filed an amicus curiae brief arguing that the Court of Appeals should uphold the District Court finding that the current Military Selective Service Act is unconstitutional. Oral arguments on the appeal were held March 3, 2020, before a 3-judge panel of the 5th Circuit Court of Appeals at Tulane Law School in New Orleans. A decision by the panel was issued on August 13, 2020, reversing the District Court judgment on the grounds that it amounted to overturning the Supreme Court's precedent, which only the Supreme Court has the authority to do. Harry Crouch, President of the National Coalition for Men, announced that NCFM was "exploring its options, including filing a Petition for Writ of Certiorari with the United States Supreme Court.". On January 8, 2021, NCFM, represented by the ACLU and cooperating counsel from Hogan Lovells, filed a petition for certiorari with the U.S. Supreme Court, asking the Supreme Court to review the decision of the 5th Circuit Court of Appeals. The case has been docketed in the Supreme Court as case No. 20-928.
- Tyler Pager (February 24, 2019). "Drafting Only Men for the Military Is Unconstitutional, Judge Rules". The New York Times. Retrieved February 24, 2019.
- "National Coalition for Men v. Selective Service System (4:16-cv-03362) Document #1: COMPLAINT". April 4, 2013.
- National Coalition for Men v. Selective Service (2016) 19 February 2016. U.S. Court of Appeals, 9th Cir.
- "United States Courts Opinions. United States District Court Southern District of Texas. MEMORANDUM OPINION AND ORDER GRANTING 57 MOTION for Leave to File First Amended Complaint, DENYING MOTION for leave to transfer venue" (PDF). U.S. Government Publishing Office. August 16, 2017. Retrieved September 4, 2017.
- Max Z. Margulies (March 27, 2020). "The National Commission on Public Service Is Right to Endorse Women's Draft Registration". Lawfare.
- Inspired to Serve: The Final Report of the National Commission on Military, National, and Public Service (PDF) (Report). National Commission on Military, National, and Public Service. March 2020.
- National Commission on Military, National, and Public Service (January 23, 2019). "National Commission on Military, National, and Public Service: Interim Report". inspire2serve.gov.CS1 maint: multiple names: authors list (link)
- Women May Have to Register for the Draft as Men's Group Wins Selective Service Lawsuit
- "United States Courts Opinions. United States District Court Southern District of Texas. MEMORANDUM OPINION AND ORDER" (PDF). February 22, 2019.
- Korte, Gregory (February 24, 2019). "With women in combat roles, a federal court rules the male-only draft unconstitutional". USA Today. Retrieved February 24, 2019.
- "Selective Service Defends Men-Only Draft In 5th Circ". Law360. August 15, 2019. Retrieved September 17, 2019.
- "AMICUS CURIAE BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS; AMERICAN CIVIL LIBERTIES UNION; 9TO5, NATIONAL ASSOCIATION OF WORKING WOMEN; A BETTER BALANCE; GENDER JUSTICE; KWH LAW CENTER FOR SOCIAL JUSTICE AND CHANGE; NATIONAL ORGANIZATION FOR WOMEN FOUNDATION; NATIONAL WOMEN'S LAW CENTER; WOMEN'S LAW CENTER OF MARYLAND; and WOMEN'S LAW PROJECT IN SUPPORT OF PLAINTIFFS-APPELLEES" (PDF). National Women's Law Center. October 18, 2019. Archived (PDF) from the original on July 19, 2020. Retrieved July 19, 2020.
- Hasbrouck, Edward. "Appeals Court hears arguments on the Constitutionality of draft registration". Resisters.info. Retrieved March 6, 2020.
- National Coalition for Men vs. Selective Service System, No. 19-20272 (5th Cir. 2020-08-13).
- Crouch, Harry. "National Coalition For Men". Retrieved August 18, 2020.
- Hasbrouck, Edward. "Supreme Court asked to review Constitutionality of current male-only draft registration requirement". Antiwar.com. Retrieved January 8, 2021.
- "National Coalition For Men, et al., Petitioners v. Selective Service System, et al". Supreme Court of the United States. Retrieved January 12, 2021.