A U.S. Circuit Court of Appeals ruled Thursday that a male-only draft is constitutional, basing its decision on a 1981 Supreme Court ruling when women were excluded by law from combat.
A three-judge panel of the 5th U.S. Circuit of Appeals overturned a district court’s ruling in Texas from 2019, saying that it contradicted the Supreme Court’s ruling in Rotsker v. Goldberg which said a male-only draft did not violate men’s Fifth Amendment rights to due process.
“That holding is controlling on this court,” Thursday’s opinion said. “The Fifth Circuit is a 'strict stare decisis’ court and ‘cannot ignore a decision from the Supreme Court Case unless directed to do so by the Court itself.’
“Here…the factual underpinning of the controlling Supreme Court decision has changed, but that does not grant a court of appeals license to disregard or overrule that precedent.”
The circuit court of appeals was referring to the fact the last remaining restrictions on women in combat were removed by 2016 under the Obama administration. Thursday’s decision was unanimous by judges appointed to the circuit court by Presidents George H.W. Bush, Bill Clinton and Donald Trump.
The president of the National Coalition of men, which sued the Selective Service System on behalf of two men who were required to register for the draft, vowed an appeal, although wouldn’t be specific.
“All I can tell you is we will be moving the case forward,” Harry Crouch told ABC News.
The U.S. Congress ended the draft in 1973 following the Vietnam War in favor of an all-voluntary military force. However, under President Jimmy Carter, it was partially reactivated, requiring men to register for the draft upon turning 18.
The policy was challenged but the Supreme Court ruled in Rostker that since women were excluded from combat, the male-only nature of the registration was not discriminatory and did not violate due process guarantees.
Restrictions barring women from combat roles began to ease in the 1990's under the Clinton administration until they were completely abolished under Obama.
Following the arguments made before the 5th Circuit in March, a federal commission recommended requiring women to register for the Selective Service System as well.
“The Commission concluded that the time is right to extend Selective Service System registration to include men and women, between the ages of 18 and 26. This is a necessary and fair step, making it possible to draw on the talent of a unified Nation in a time of national emergency,” the commission’s report said.
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