Drafting women gets men’s rights group a wide range of support

A federal judge's finding that male-exclusive military drafts are unconstitutional marks a substantial victory for a litigious men's rights organization, but the win is being championed by legal groups across the political divide.

The National Coalition for Men, a nonprofit group of volunteer attorneys pursuing litigation in instances of alleged gender discrimination against men, argued in a case transferred to the U.S. Southern District of Texas that limiting the Military Selective Service Act to men between the ages of 18 to 26 violated their 5th Amendment due process right.

U.S. Supreme Court precedent upheld the constitutionality of an all-male draft with the exemption of women "fully justified" because women at the time were prohibited from combat roles. Rostker v. Goldberg, 453 U.S. 57 (1981).

That's changed in the decades since, wrote U.S. District Judge Gary H. Miller in a ruling granting the coalitions' motion for summary judgment Friday. The U.S. Department of Defense lifted its ban on women in combat roles in 2013 and later lifted all gender-based restrictions on military service in 2015.

"While historical restrictions on women in the military may have justified past discrimination, men and women are now 'similarly situated for purposes of a draft or registration of a draft'," said Miller, citing Rostker. "If there ever was a time to discuss 'the place of women in the Armed Services,' that time has passed."

Marc Angelucci, a Crestline-based attorney with the coalition who litigated the case, said Monday he's been flooded with calls and emails in the days since the court victory, expressing support for the result.

"We're very happy about the decision; it's been a long battle," Angelucci said. "This is just one area where men face discrimination, and it's a very important one."

Angelucci filed the case in the Central District of California in 2013. The 9th U.S. Circuit Court of Appeals reversed U.S. District Judge Dale S. Fischer's initial termination of the case, finding its claims were "definite and concrete, not hypothetical or abstract."

Fischer dropped the coalition as a plaintiff on remand, reasoning it lacked standing as it would not be affected by the draft, and transferred the case to the remaining plaintiff's home jurisdiction in Texas. A man within the age of draft conscription, the remaining plaintiff amended to have the organization again listed as plaintiff.

"We had no idea we'd end up in Houston. I ended up handling it telephonically," Angelucci said.

The group's filings, which range from paternity fraud and child custody cases to more media-prominent discrimination lawsuits against bars operating "Ladies Only Nights," can be powder kegs for partisan divides. But Angelucci said support on the draft challenge has been coming from across the political spectrum.

"The media is actually positive, whereas when we address these issues in other areas, it's challenged in this way or that way," Angelucci said. "In this instance, it's been overwhelmingly good coverage."

Emily Martin, vice president for Education and Workplace Justice at the National Women's Law Center, said with the court's reasoning based on the government's shifted stance on women in combat roles, she believes the decision was primarily earned by women who have been fighting for equality in the military for decades.

And though she believes "various matters they have championed are deeply misguided," with many of its victories coming at the expense of effective social and educational programs, she said the men's rights coalition had the correct position in the case.

"I think the court in this case really did what the Constitution requires. It looked closely to see whether there was any important reason why men and not women are not registered for selective service, and the rationale didn't stand up," said Martin, who is not involved in the case. "Even a stopped clock is right twice a day."

Angelucci said he was unsure if the Selective Services System would appeal, and numbers listed in court filings for the U.S. Department of Justice attorneys handling the case were not in service Tuesday.

David B. Cruz, Newton Professor of Constitutional Law at USC Gould School of Law, said he was fairly confident the organization would appeal given their venue would be the fairly conservative 5th U.S. Circuit Court of Appeals, even though the case doesn't neatly break down ideological lines. National Coalition for Men v. Selective Service System, 16-CV03362 (S.D. Texas., filed Nov. 15, 2016).

"It's not a pure liberal versus conservative issue, but I do think when we're talking about judges in multi-member courts of a more conservative bent, they do tend to line up more in deference when the military is concerned, whereas more liberal courts tend to be less deferential," Cruz said.

But unless the 5th Circuit "beefs up its deference substantially," Cruz said it'd likely affirm, and the U.S. Supreme Court would grant review if further challenged. Given the basis for the judgment, Cruz said he couldn't see any reason to upend the standing judgment.

The ruling is declaratory rather than injunctive, Martin said, so the ball's firmly in the government's court to take action. Though ostensibly a call for expanding the draft, last invoked in 1973 during the closing days of the Vietnam War, Martin said the ruling is going to prompt discussions about getting rid of it.

That's a discussion Angelucci said he's also eager to have.

"There are of course various views on it: Should women be in combat? Should we even have a draft at all?" Angelucci said. "What Congress is now talking about is a complete overhaul. I think that's all going to come out of this."