Judge says all-male military draft unconstitutional

February 25, 2019

A federal judge in Texas has ruled that a military draft that targets only men is unconstitutional, and declared that the “average woman could conceivably be better suited physically for some of today’s combat positions than the average man.”

U.S. District Judge Gray Miller ruled Friday that the “time has passed” to question whether women should be required to register for the selective service system as men who turn 18 have long been required to do.

The ruling came as the most significant legal challenge to the system since the Supreme Court in 1981 declared an all-male draft to be constitutional, and ruled that “since women are excluded from combat service by statute or military policy, men and women are simply not similarly situated for purposes of a draft or registration for a draft.”

All military combat roles were opened to women in 2015 by former Secretary of Defense Ash Carter. That change prompted a debate in Congress over whether the draft requirement should be extended to women, and led to the creation of the congressionally mandated National Commission on Military, National and Public Service.

An interim report issued last month by the panel said it remains open to requiring women to register for the draft or abolishing the draft registration process altogether, two options that are included in a broad range of alternatives.

Commission Chairman Joe Heck on Monday called out Judge Miller for not directing Congress or the Selective Service System to take specific action regarding his ruling.

“The Commission is studying a wide range of possible changes, including not only whether women should register, but whether the nation even needs a registration system,” Mr. Heck said. “The district court’s opinion means change is inevitable and the status quo is untenable.”

The Selective Service System has long been a hot topic in military circles, sparking debates on the efficiency and costs of an all-volunteer force, the difficulty military services periodically face in filling critical jobs, and the fairness of having only young men register for the draft. The panel plans to host hearings on the possible changes that would come with opening the draft to women later this year.