Fifth Circuit: Male-Only Draft Is Constitutional Until SCOTUS Says Otherwise

By Joseph Fawbush, Esq. on August 19, 2020 | Last updated on August 10, 2021

Congress passed the Military Selective Service Act during World War I, which requires men between the ages of 18 and 26 to register for military service in the event of a draft. In 1980, President Jimmy Carter recommended to Congress that the Act be extended to women, who had begun to serve in non-combat roles. Congress declined to do so. In 1981, the U.S. Supreme Court held in Rostker v. Goldberg that the male-only draft is constitutional based mainly on the fact that women at the time did not serve in direct combat roles.

By the mid-90s, however, women served in almost all roles in the Air Force and Navy; only direct ground combat was forbidden. In 2016, the last restrictions on women serving were lifted. Women can now serve in all military positions and roles, including ground combat.

In 2017 Congress and President Trump created the National Commission on Military, National, and Public Service, which, among other things, was intended to make recommendations regarding expanding the Selective Service System. In March 2020, the Commission recommended that Selective Service be expanded to include women.

Does that mean the Supreme Court's decision in Rostker is no longer applicable? According to the Fifth Circuit in a succinct recent decision, no. While the district court held in favor of the plaintiffs based on the significant shift in circumstances underlying the Supreme Court's reasoning, the Fifth Circuit nonetheless felt bound by Supreme Court precedent.

It Is for the Supreme Court to Overturn Its Own Precedent

Rather than look at the Constitutional issues of the case, the per curiam opinion relied on stare decisis only to reach its decision. The legal analysis is summarized in a short quote:

"Plaintiffs-Appellees point to no case in which a court of appeals has done what they ask of us, that is, to disregard a Supreme Court decision as to the constitutionality of the exact statute at issue here because some key facts implicated in the Supreme Court's decision have changed. That we will not do."

The Fifth Circuit declined to weigh the legal merits of the arguments, instead holding that it was not the Fifth Circuit's place to overturn the Supreme Court. While not yet certain, an appeal seems likely. Meanwhile, there may be some inclination in Congress to revisit the issue. It is possible Congress could expand the Selective Service System. The Supreme Court could also potentially take up the case next term. If SCOTUS does uphold Rostker, it would need to consider the military's new policy on women in combat roles.

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