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Men-only military draft is unconstitutional, federal judge rules

San Diego Union Tribune logo San Diego Union Tribune 2/24/2019 By Pauline Repard, The San Diego Union-Tribune

U.S. Military cadets run in full combat gear as they start competing in the 50th annual Sandhurst Military Skills Competition, a rigorous two-day event where teams of eight men and women from military academies and universities from 13 countries are tested in multiple military skills, athletic proficiency and leadership abilities at the United States Military Academy at West Point, New York, U.S., April 13, 2018. REUTERS/Mike Segar © Reuters U.S. Military cadets run in full combat gear as they start competing in the 50th annual Sandhurst Military Skills Competition, a rigorous two-day event where teams of eight men and women from military academies and universities from 13 countries are tested in multiple military skills, athletic proficiency and leadership abilities at the United States Military Academy at West Point, New York, U.S., April 13, 2018. REUTERS/Mike Segar A federal judge has ruled that a men-only military draft is unconstitutional, but he stopped short of ordering the Selective Service System to register women.

The Houston judge sided with a San Diego men's advocacy group that challenged the government's practice of having only men sign up for the draft, citing sex discrimination in violation of the Fifth Amendment's equal protection clause.

"This case balances on the tension between the constitutionally enshrined power of Congress to raise armies and the constitutional mandate that no person be denied the equal protection of the law," wrote U.S. District Judge Gray Miller of the Southern District of Texas.

The lawsuit was filed in 2013 against the Selective Service System by Texas resident James Lesmeister, who later added San Diego resident Anthony Davis and the San Diego-based National Coalition for Men as additional plaintiffs.

The two men had standing to sue the government because they were within the age range of 18 to 26 in which men in the United States are required to register with Selective Service.

"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 divorce, child custody and domestic violence services, Coalition attorney Marc Angelucci said. "Women are now allowed in combat, so this decision is long overdue. After decades of sex discrimination against men in the Selective Service, the courts have finally found it unconstitutional to force only men to register."

The government asked the judge to dismiss the suit or stay a decision until a national commission studying the issue of women's draft registration reaches a recommendation.

The judge noted that could take years, and even then Congress isn't required to follow the commission's findings.

"Congress has been debating the male-only registration requirement since at least 1980," Miller wrote.

The government referred to a 1981 U.S. Supreme Court decision that the Military Selective Service Act was constitutional as written, to exclude women, because women restricted from combat were not offered similar opportunities that men had.

Miller found that reasoning no longer applicable, since the Department of Defense lifted all gender-based restrictions on military service - including combat roles - in 2015.

The judge likewise disagreed with the government's position that drafting women would be an administrative burden and that far more women than men will be found physically unfit for service after being drafted.

Congress has expressed few concerns about female physical ability, but did focus more on societal consequences of drafting young mothers to go off to war, Miller said.

"If there was ever a time to discuss 'the place of women in the Armed Services,' that time has passed," Miller wrote.

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