The future of the draft is divergent, and recent federal rulings are setting the wheels in motion for its change.
The current language of the Military Selective Service Act only selecting males has been ruled unconstitutional by U.S. District Judge Gray Miller of the Southern District of Texas. What does this mean for the Selective Service System’s practice of only selecting men for potential military service?
Nothing, for now.
When a male between the ages of 18 and 25 applies for federal student aid, a driver’s license or federal employment, he will still be required to answer whether he registered for the selective service. In addition, he will continue to be reminded of the penalties for not doing so, which range from being denied eligibility for federal benefits to being prosecuted and facing fines up to $250,000 and/or jail time of up to five years.
Because Judge Miller’s decision came in the form of a declaratory judgement and not injunctive relief, the Selective Service System was not ordered by the court to register females or to do away with the selective service process. Rather, the court was asked by the plaintiffs in the case, like National Coalition for Men, to make a call.
A declaration of the court is a legal determination, much like a mass email from a commander stating his/her position on an issue. However, as a result of the court’s declaration, the legal rule 50 U.S.C. § 3802 – Registration is now tainted with an unfavorable reading from the judiciary, which has put the 116th Congress on notice to make a change. This is not a surprise to Congress because it had already created the National Commission on Military, National and Public Service on Sept. 19, 2017 to further examine the Selective Service System.
The bipartisan, 11-member commission is expected to publish a final report on the military selective service process by September 2020. In its final report, one should see a response from the commission about the constitutionality of the Military Selective Service Act.
In the commission’s interim report, published January 2019, Chairman Joseph J. Heck, stated, “My fellow commissioners and I are grateful to those whose commitment to service has proven instrumental in bringing these issues to the forefront of public debate. We thank Reps. Mac Thornberry and Adam Smith of the House Armed Services Committee along with the late Sen. John McCain and Sen. Jack Reed of the Senate Armed Services Committee for their vision in creating this Commission. We also deeply appreciate all who have contributed to our nation and our communities through service.”
The most important takeaway from Judge Miller’s decision is the formal recognition of a change in American perception with respect to women in combat. The argument for male-only selective service based on overly broad and stereotypical assumptions of women and men no longer holds water. Moreover, public awareness of the inequitable penalties for males who fail to register has increased.
Harry Crouch, president of NCFM, expressed his disappointment with what can be fairly described as a lack of mainstream media coverage: “It is surprising that larger outlets are not covering this story at all.”
Furthermore, Crouch said, “This has surpassed the legal issue point . . . to think women will be immediately conscripted and required to go to war now [as a result of Judge Miller’s ruling] is totally absurd.”
Crouch also recognizes, in light of the recent legal decision, that the debate is no longer over the application of a legal rule with respect to the Military Selective Service Act, but one of a social nature. Organizations, such as NCFM, are bringing to light men’s issues not ordinarily covered in the mainstream debate.
Learn more about what NCFM is doing at www.ncfm.org.
Join the conversation about the Selective Service System on the commission’s website, http://www.inspire2serve.gov.Read comments