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The All-Male Draft Violates the Fourteenth Amendment

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And a District Court judge has so ruled:

Nearly 23 years ago, Justice Ruth Bader Ginsburg issued a landmark decision invalidating the Virginia Military Institute’s exclusion of women as a violation of equal protection. The ruling in United States v. Virginia compelled the United States’ last all-male public university to accept women, who quickly proved themselves to be worthy cadets. But as every adult man in the U.S. knows, sex discrimination in military service remains: Upon their 18th birthday, American men must register for the selective service, while women are exempt. How, almost 23 years after the VMI decision, can this flagrant inequality persist?

On Friday, a federal judge in Texas provided an answer: It can’t. In a brief but emphatic decision, U.S. District Judge Gray H. Miller ruled that the Selective Service System may not constitutionally direct men to register as part of its draft requirements while excluding women. Miller’s decision closely tracks Ginsburg’s gradual development of the law toward ever-greater gender equality. While the outcome might seem startling, the logic is carefully anchored in precedent. It would be difficult if not impossible for the Supreme Court to reverse Miller’s ruling without simultaneously eroding decades of sex discrimination jurisprudence. Under any plausible interpretation of today’s equal protection principles, the men-only selective service has got to go.

I can see an argument that it should be left to the Supreme Court to overrule Rostker, although I think Miller has a very strong argument that between women being made eligible for combat and Virginia and its progeny the precedent has become sufficiently anomalous as no longer be applicable. But certainly the all-male draft is not consistent with the Court’s current approach to the equal protection clause.

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