Gender Integration in the Military Calls into Question Male-Only Draft

As the military has gone through reform over the recent years, many rules propose to be a challenge to long standing laws.  Of note, gender integration in the military has raised possible 14th Amendment violations of the male-only mandatory registration of the Selective Service System should the system continue without adding females.

As the Department of Defense (DoD) and the government continue their path to complete gender integration in the military, new hurdles arise, while old hurdles still linger.  In the former, military leaders are calling to tie off some of the last remaining ends.  Notably, with every military role open to females now, the Joint Chiefs of Staff (JCOS) have called for changing the male-only mandatory registration of the selective service system to include females.[1]

But, not everyone is convinced the U.S. military should have full integration, and, thus, a change to the selective service system registration may be premature.  Members of the Senate Armed Services Committee continue to cast their doubts on the effectiveness of making a gender-integrated military so suddenly, if at all.

Senator John McCain (R-AZ)-Chairman of the Senate Armed Forces Committee—leads the skeptical voice on gender integration for the military.  Additionally, Sen. McCain has pushed back on many of the recent changes in the military, including repealing the controversial “Don’t Ask Don’t Tell” policy, where homosexuals were prohibited from serving openly in the military.

Over the recent years, however, Sen. McCain is starting to see himself as a lone wolf as military Generals continue to lean toward bringing the military up to speed, and aligned with employment policies of the private sector.

While U.S. Generals spar with Congress, the courts are already taking up some of the lingering issues presented with gender integration of the military.  In National Coalition for Men (NCFM) v. Selective Service System, NCFM is challenging the male-only mandatory registration of the selective service system on the grounds that it violates the 14th Amendment’s equal protection clause.[2]  The action was initiated in 2013, when the military was mulling over data and tests on whether a gender-integrated military would comprise America’s fighting force, thereby weakening national security.

The district court dismissed the case on the grounds that the issue was not ripe given the military’s ongoing deliberations over gender integration.  Since then, though, the Department of Defense (DoD) announced the military would open all roles to females.  Thus, the National Coalition for Men appealed to the United States 9th Circuit Court of Appeals.

On appeal, the 9th Circuit addressed the basic issue: whether the challenge to male-only mandatory registration of the selective service system has ripened in light of the recent changes in the military to commit to gender integration at all levels.  Indeed, counsel for both the National Coalition of Men and the Government were reminded that the district court never reached the merits of the issue; consequently, neither will the 9th Circuit.  Rather, the court will decide if the case has ripened in light of the new policy changes by the DoD to reverse the district court’s holding, and remand for further proceedings.[3]

At oral argument in December, the 9th Circuit seemed to lean in favor of the idea that the district court’s holding should be reversed, and the case remanded.[4]  If the case is remanded, the government looks poised to make the argument that the challenge is a political question, where changing the male-only mandatory registration of the selective service system is best suited for the military and Congress to consider, and not the judicial branch.

The political question doctrine restrains courts from hearing questions that are best suited for a different branch of government.  In Baker v. Carr, 369 U.S. 186 (1962), the U.S. Supreme Court narrowed the scope of the political question by holding that courts should not hear cases which deal with a question that the constitution explicitly, or implicitly, makes the responsibility thereof to a particular branch of government.  Thus, that holding did not restrain courts from hearing issues which the constitution protects, such as equal protection.

Therefore, where, as is here, the constitution does speak to the issue presented (equal protection), and where the executive branch erects a policy in one direction (gender integration of all military roles), while an aged congressional statute now cuts against the 14th Amendment’s equal protection clause (Military Selective Service Act), the political question argument would fail to persuade a court to dismiss on the grounds of the political question doctrine.

The statute in question—Military Selective Service Act—provides “for the common defense by increasing the strength of the Armed Forces,” through the use of a male-only registration into the selective service system.[5]  Can this statute survive the test of the 14th Amendment’s equal protection clause in light of a gender-integrated military at all levels?  Or, will the court accept the political question doctrine argument allowing deference to congress to change the aged statute that has now fallen in contradiction to the 14th Amendment.

If the court does hear the case before Congress can act, based on the aforementioned, the court should reach the merits of the case at bar.  Even a cursory view of the 14th Amendment, would raise little doubt on the plain meaning of the statute:

“No State shall make or enforce … nor deny to any person within its jurisdiction the equal protection of the laws.”[6]

Indeed, it is clear that the equal protection clause was meant to prohibit laws which were either made, or enforced, in such a manner that would levy injustice to particular persons.  The Military Selective Service Act was enacted at a time the military had distinguishing roles for males, and females in the military.  Thus, the Military Selective Service Act did not violate the 14th Amendment, because the military had specific roles for males and females, where all combat roles were designated male-only.

The recent changes however, have upended the traditional system of gender specific military roles.  Today, every role, in every military branch has now been opened to females, including special forces.  In other terms, the military has done away with gender-specific military roles.  Consequently, the military has adopted a gender-integrated policy allowing for both males and females to fill any military role, contingent on qualifications that do not include gender biases (i.e. physical and aptitude tests).

Therefore, the Military Selective Service Act may have been appropriate in the past when the military had gender-specific military roles; however, today, the Military Selective Service Act is undoubtedly violating the 14th Amendment’s equal protection clause, as it continues to enforce a male-only mandatory registration, despite the military’s gender-integration of all military roles.

In the end, Congress has three options of rectification: (1) do away with the Selective Service System’s registration all together, thus repealing the Act; (2) amend the Military Selective Service Act to include mandatory registration of females, or; (3) amend the Military Selective Service Act to do away with the “mandatory” element, and, instead, create a “voluntary” registration.  Congress may elect the latter option to satisfy skeptics of gender-integration of the military, while providing a detour around the issue of the 14th Amendment.

[1] Travis J. Tritten, Marines, Army: Time for women to sign up for draft, Stars and Stripes (Feb. 2, 2016),  http://www.stripes.com/marines-army-time-for-women-to-sign-up-for-draft-1.391782

[2] National Coalition for Men v. Selective Service System, No. 13-56690 (9th Cir. Dec. 8, 2015), http://ncfm.org/2014/06/action/ncfm-files-opening-appellate-brief-in-ncfm-v-selective-service-system/.

[3] United States Courts for the Ninth Circuit, http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000008736 (last visited on Feb. 7, 2016).

[4] Ibid.

[5] Military Selective Service Act, 50 U.S.C.A. §§451-453 (2012), available at https://www.sss.gov/About/Agency-Mission/Military-Selective-Service-Act

[6] U.S. Const. amend. XIV, available at Library of Congress, A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875, https://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=014/llsl014.db&recNum=389