A recent lawsuit filed by a teenage girl in New Jersey (in conjunction with her mother) challenges the constitutionality of male-only draft registration, arguing that it violates the Constitution because it discriminates on the basis of sex.
A New Jersey teenage girl has brought a federal class action against the Selective Service System, claiming its refusal to consider women for the draft is discriminatory.
“With both males and females available for such roles today, the two sexes are now similarly situated for draft registration purposes and there is no legitimate reason for the government to discriminate against the female class, so equal protection applies,” the complaint states. “Further, with both males and females available for such combat roles, there is no reasonable basis for infringing the associational interests of the female class by preventing them from registering.”
Noting that she will turn 18 this year, E.K.L., as she is named in the complaint, says she attempted to register for the draft on the website of the Selective Service by filling out the online form.
Once she clicked “female” during the online registration process, however, the website prevented her from registering….
E.K.L. and her mother call it undisputed that the Military Selective Service Act creates a sex-based difference.
Banning women from the pool of potential recruits is not rational given the role females currently play within the military, according to the complaint.
“If the two sexes can fight and die together, they can register together; if not, then no one should have to register,” the complaint states.
More information about the lawsuit is available in this article.
I predicted that such a case would arise back in early 2013, when the Pentagon made women eligible to serve in nearly all combat roles (though I expected it to be brought by men forced to register for select service, rather than by women excluded from doing so).
The Supreme Court previously upheld the constitutionality of male-only draft registration in the 1981 case of Rostker v. Goldberg. However, as I also pointed out in that post, that ruling was partly based on the theory that women would not be as valuable draftees as men in an era when the armed forces excluded women from most combat positions.