In a recent court case, National Coalition for Men v. Selective Service System (NCFM v. SSS), Judge Gray H. Miller ruled that a male-only military draft is unconstitutional, finding it violates the Due Process clause of the Fifth Amendment. Although such a ruling will not produce immediate change in the draft system − Congress is currently writing a report on it, and the Supreme Court will likely take up the case – the ruling is a high-profile instance of a “legacy” system conflicting with modern notions of equality and perhaps with political popularity.
As the law currently stands, all American men between the ages of 18 and 25 must register with the Selective Service System, the governmental body tasked with conducting a military draft if need be. Young men who refuse to register are potentially subject to a fine of up to $250,000 and up to five years in prison, although prosecutions were suspended in 1988. And draft registration doesn’t just bear on possible military service. More practically and immediately, there is the fact that for many Americans, access to a wide range of federal programs − including federal student aid − requires Selective Service registration.
A 2015 Defense Department decision to open all military combat roles to women made a legal challenge to the current draft system possible or more feasible. Since then, a growing number of women have joined combat units. While many people have lauded the department’s decision as an advance for gender equality, it has faced considerable criticism as well. Nevertheless, integration of women into combat roles has allowed the plaintiffs in NCFM v. SSS to argue that because no combat roles are closed to women, a male-only draft is discriminatory and violates the Due Process clause. The Selective Service System has argued that it simply enforces the law as enacted by Congress, which says that only men must register.
Because no concrete changes have yet occurred to the draft registration system, public response has been relatively muted. But a split in opinion certainly exists. A 2016 Rasmussen poll showed that 52 percent of women opposed having to register for Selective Service, while 61 percent of men favored women being required to register. Politicians have been slightly more vocal than the general populace. Senator Ted Cruz, a Republican, opposes making women register for the draft, while Senator Tammy Duckworth, a Democrat and veteran, has said that because all combat roles are open to women, they should have to register.
Should women be compelled to register for the draft? The answer requires an examination of two issues: military effectiveness and gender equality. The debate still rages on whether the inclusion of women in combat roles negatively affects combat effectiveness. The Marine Corps has released a study indicating that in key tests of combat readiness, mixed-sex combat teams performed far below the standards set by all-male combat teams. If women’s presence in such roles does affect a unit’s readiness for combat, how do we implement our society’s desire to keep our troops safe while fostering gender equality?
Although society has not yet reached consensus for a draft including women, policy makers have reached the conclusion that all combat roles should be open to women. Because of this, women should be compelled register for the draft. As policy currently stands, policy makers have in effect judged that the importance of gender equality in the military supersedes any concerns, however valid or invalid, about combat effectiveness. This makes irrelevant one of the primary arguments for not including women in draft registration: the contention that they will not be effective in meeting the military’s needs in the case of a draft. Since the same combat opportunities are now open to men and women, not drafting women solely based on their sex is immoral and a form of gender discrimination. Even though drafting women may be unpopular with women, our society has long strived to hold the principles of equality above principles of political popularity, despite uneven success in doing so.
Gender equality in combat and gender equality in the draft must stand or fall together. If women were not permitted in combat roles, then the rationale for drafting them in the case of war would be weak. However, since we do not restrict women from any combat roles, they must be subject to the same civic duties as men and be required to register for the draft.