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Men-only draft constitutionality to be reviewed by federal court

U.S. Army Pvt. 1st Class Jo Marie Rivera, left, a human resource specialist, and Sgt. 1st Class Rebecca Hamby, a military police officer, both with the 3rd Brigade Combat Team, maintain security for a Female Engagement Team chief during a consultation at a clinic in the Tarnak wa Jaldak district, Zabul province, Afghanistan, Sept. 18, 2013. (U.S. Army photo by Sgt. Kandi Huggins, Released)
March 04, 2020

A U.S. federal appeals court is currently considering whether a men-only wartime draft is constitutional now that women can also serve in military combat roles.

The National Coalition for Men and two men challenging the male-only draft brought their arguments before the U.S. 5th Circuit Court of Appeals on Tuesday. According to the Associated Press, the three-judge panel appears skeptical of the new challenge to the draft, however, the military’s push in recent years to open combat roles to women could lend new credence to arguments for expanding the draft to include women.

Judges Carl Stewart, Don Willett, and Jacques Weiner all considered the new challenge to the draft in light of a 1981 Supreme Court ruling that previously upheld the men-only draft. The three judges questioned whether they should rule against the past Supreme Court ruling even after the military opened combat roles to women. A federal judge in Texas already ruled in 2019 in favor of the National Coalition for Men and determined that the men-only draft is unconstitutional.

Now the appeals court must consider if it will allow the lower court’s ruling to proceed or maintain the Supreme Court’s prior decision.

Marc Angelucci, a lawyer for the National Coalition of Men argued that the 1981 ruling was predated the military’s stance on women in combat. Angelucci said having women in combat roles now changes the circumstances enough to warrant new consideration.

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U.S. Justice Department lawyer Claire Murray argued the lower court does not have the authority to overrule the Supreme Court’s existing stance on the issue, and that Congress should retain the authority to make laws governing the military draft.

In the five years since the military opened combat roles to women in 2015, Congress has not passed legislation extending the draft beyond men-only. Murray said Congress should further consider factors like the anticipated mortality rates among women on the battlefield and the need to provide separate equipment and facilities if women are forced to serve in equal numbers as men.

The federal government has not used the military draft since 1973, but men are still required to register for the draft when they turn 18. According to the Associated Press, a federal commission is currently considering whether the women should be compelled to join the draft or if the nation even needs a service draft altogether.

The Justice Department under President Donald Trump has, thus far, has opposed ordering women into the draft.

“It would impose draft registration on all eligible American women by judicial fiat before Congress has considered how to address the matter,” the Justice Department argued in a 2019 statement.