By: Joshua Plummer
On September 22, 2021, the Senate Armed Services Committee introduced S. 2792, the “National Defense Authorization Act for Fiscal Year 2022” (“2022 NDAA”), to the first session of the 117th Congress.[1] Buried in the 998 pages of the extensive $768 billion bill, which includes everything from the acquisition of combat aircraft to the research and development of artificial intelligence, is a bipartisan amendment to 50 U.S.C. § 3802 of the Military Selective Service Act (“MSSA”), also known as “the draft.”[2]
The MSSA currently requires all men ages eighteen to twenty-five to register for selective service within thirty days of turning eighteen to ensure a population of potential draftees is always identified in the event of a national emergency.[3] The MSSA amendment, which has been widely debated for decades, seeks to replace the language in § 3802(a) requiring “every male citizen” to register for the draft with gender-neutral language.[4] Thus, if passed into law, the 2022 NDAA amendment would signify clearing the final hurdle to complete gender equality in the U.S. military by effectively requiring women to register for the draft for the first time ever. However, the amendment is not without a groundswell of debate.
The first draft occurred in the U.S. during the Civil War to bolster the manpower of the Union Army.[5] Similar drafts were instituted during both World War I (“WWI”) and World War II (“WWII”), with each law expiring following the end of the conflict.[6] Following WWII, the draft was reinstituted with the Selective Service Act of 1948 to maintain necessary military manpower levels for the developing Cold War.[7] From 1948 to 1973, nearly five million men were drafted during both peacetime as well as in service of both the Korean and Vietnam wars.[8]
In 1973, the Selective Service System transitioned to its current “standby” form, requiring mandatory registration without compulsory service.[9] Since that time, the U.S. has engaged in armed conflicts in Lebanon, Grenada, Panama, the Persian Gulf, Somalia, Bosnia & Herzegovina, Kosovo, Afghanistan, and Iraq with an all-volunteer military force.[10] Though Congress could revive the draft to support the all-volunteer force in case of a national emergency, there has been little to no need—or appetite—to do so due to this large standing military.[11] However, despite the draft’s “dormant” status for the last several decades, the draft has remained controversial.
In 1981, a group of men filed suit against the Selective Service System, challenging the male-only requirement as gender-based discrimination.[12] The Supreme Court ultimately disagreed, holding that men and women were not “similarly situated” under the MSSA because women were not eligible for combat positions as a matter of law.[13] Thus, because the purpose of the draft is to efficiently assimilate draftees into a combat force during a time of war, the court determined that drafting women who were ineligible for combat roles was not in line with the draft’s intent.
However, following the complete integration of women into all roles—including combat roles—in the military in 2016, the debate regained new life after having been on life support for thirty-five years.[14] In 2019, the National Coalition for Men (“NCFM”) renewed the gender-based discrimination challenge to the Selective Service System arguing that the fundamental premise underlying the Rostker decision was no longer true.[15] But, after a federal trial court in the Southern District of Texas granted summary judgment for NCFM, the U.S. Court of Appeals for the Fifth Circuit reversed, citing stare decisis when it explained, “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.”[16]
On final appeal, the Supreme Court denied certiorari for NCFM in June 2021, but not due to a lack of merit.[17] While the Court also acknowledged the meteoric shift in the underlying premise of Rostker, the Court explained that its “longstanding deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue.”[18] Thus, while the Court’s refusal to hear the case was a setback for military draft equity on its face, the Court was simply abdicating responsibility for a decision that it recognized ultimately rested with Congress.
As Congress stands on the precipice of establishing a gender-neutral draft, it appears that their inclination may be well-founded. However, it also remains to be seen whether the 2022 NDAA will pass through Congress intact with the amendment. This isn’t the first time Congress has attempted to pass this amendment. In 2016, both the House and Senate Armed Services Committees included the requirement for women to register for the draft in their initial drafts of the NDAA, but the language did not survive negotiations between the House and Senate.[19]
As the amendment approaches another round of debate on the floor of Congress, the only thing for certain is that argument and criticism among those with an opinion on the issue remains fierce. On one end of the spectrum, supporters of the amendment rest their arguments heavily on the principle of gender equality. Democrat Congresswoman Jackie Speier of California expressed her support of the amendment in this manner when she stated, “[i]f we want equality in this country, if we want women to be treated precisely like men are treated and that they should not be discriminated against, then we should support a universal conscription.”[20] In other words, many supporters recognize that true gender equality rests in not just enjoying the same benefits as the other sex, but also in accepting the same burdens.
On the opposite end of the spectrum are several groups of critics who oppose the amendment for various reasons. Primary among them is a group of critics that aren’t necessarily opposed to equality in the military, but don’t view drafting women as an acceptable form of equality. Since they no longer have a clear legal principle such as “not similarly situated” upon which to stand, they tend to rely on arguments that appeal to morals and emotions. For example, Republican Senator Josh Hawley of Missouri explained his vote against the amendment by stating, “[i]t’s one thing to allow American women to choose this service, but it’s quite another to force it upon our daughters, sisters, and wives.”[21] Republican Senator Tom Cotton of Arkansas similarly opined that, “[o]ur military has welcomed women for decades and are stronger for it. But America’s daughters shouldn’t be drafted against their will.”[22]
Another group of critics approach the issue from a different perspective, with the acknowledgement that “it is unfair that only men have to register [for the draft]” but, argue in the alternative for an end to the draft altogether because “conscription is an incredibly immoral policy.”[23] Thus, no U.S. citizens—regardless of gender—should be subjected to it.[24] These critics often compare the draft to “involuntary servitude” and a violation of fundamental rights.[25] Among those critics, Republican Congressman Chip Roy of Texas seemingly appealed to both arguments when he publicly stated, “[a]bolish the draft if you want . . . but draft my daughter you will not. #DontDraftDaughters.”[26]
Thus, as Congress once again approaches the final hurdle to gender equality in the U.S. military, it appears that it might be stumbling. However, though the fate of the amendment is anything but certain, if Congress has proven anything, it is that progress is inevitable. The only question, then, is what sort of progress will we get? On one hand, if the amendment passes, though it might not be the type of equality that many advocates want, it is equality, nonetheless. Moreover, it is a victory for the idea that true equality means sharing both the benefits and the burdens. In that case, perhaps the amendment’s critics can take some solace in the idea that, with a large standing military and no one drafted in almost fifty years, such a step would be largely symbolic, if not moot altogether.
On the other hand, perhaps Congress will simply immortalize a “separate but equal” standard that accepts the idea of women voluntarily serving in the military but rejects the idea of forcing them to do so. In that case, perhaps the amendment’s supporters can also take some solace for the same aforementioned reasons. Or perhaps Congress will opt for a third option and do away with the draft altogether. While that remains a real possibility, the debate over doing away with the draft completely is a whole other issue for analysis on another day.
[1] S. 2792, 117th Cong. § 511(d)(1) (2021), https://www.congress.gov/bill/117th-congress/senate-bill/2792/actions; see also H.R. 5392, 117th Cong. (2021), https://www.congress.gov/bill/117th-congress/house-bill/5392/actions (detailing a parallel, standalone bill referred to the House Committee on Armed Services on September 28, 2021 that would also modify 50 U.S.C. § 3802 with gender neutral language, requiring women to register for the draft).
[2] Rebecca Kheel, Senate Panel Votes to Make Women Register for Draft, The Hill (July 22, 2021, 4:52 PM), https://thehill.com/policy/defense/564423-senate-panel-votes-to-make-women-register-for-draft.
[3] Selective Service, usa.gov, https://www.usa.gov/selective-service (last visited Oct. 31, 2021).
[4] Kheel, supra note 2; 50 U.S.C. § 3802 (emphasis added).
[5] The Draft, The Hist. Channel, https://www.history.com/topics/us-government/conscription (last updated Jan. 24, 2020).
[6] Id.
[7] History of the Selective Service System, Selective Serv. Sys., https://www.sss.gov/history-and-records/ (last visited Nov. 1, 2021).
[8] Induction Statistics, Selective Serv. Sys., https://www.sss.gov/history-and-records/induction-statistics/ (last visited Nov. 1, 2021).
[9] History of the Selective Service System, supra note 7.
[10] Cong. Rsch. Serv., RS21405, U.S. Periods of War and Dates of Recent Conflicts (2020).
[11] See Selective Service, supra note 3.
[12] Rostker v. Goldberg, 453 U.S. 57, 59 (1981).
[13] Id. at 76.
[14] Kheel, supra note 2.
[15] See Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568 (S.D. Tex. 2019), rev’d, 969 F.3d 546 (5th Cir. 2020).
[16] Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546, 549–50 (5th Cir. 2020), cert. denied, 141 S. Ct. 1815 (2021).
[17] Nat’l Coal. for Men v. Selective Serv. Sys., 141 S. Ct. 1815 (2021).
[18] Id. at 1816.
[19] Kheel, supra note 2.
[20] Claire Schaeffer-Duffy, Feminists Weigh in on Draft Registration for Women, Nati’l Catholic Rep. (June 28, 2016), https://www.ncronline.org/news/politics/feminists-weigh-draft-registration-women.
[21] Hawley, supra note 21.
[22] Cotton, supra note 21.
[23] Women in the Draft: The Wrong Kind of Equality, Learn Liberty (Oct. 31, 2016), https://www.learnliberty.org/blog/women-in-the-draft-the-wrong-kind-of-equality/ (emphasis added).
[24] Id.
[25] Id.
[26] Chip Roy (@chiproytx), Twitter (July 23, 2021, 11:22 AM), https://twitter.com/chiproytx/status/1418592290818433027?s=20.
