The National Coalition For Men Groundbreaking Selective Service Case

Introduction
Historically, the United States of America has had a male-only draft. Even though the draft hasn’t been implemented for decades, men are still required to register for Selective Service. If they don’t, they could risk legal punishment and employment opportunities. Several organizations and politicians have spend decades debating the issue of a male-only draft and its discriminatory nature. But, it’s never been a topic fully embraced by the mainstream. It was seen as a status quo that men were expected to do on a daily basis.
However, the National Coalition For Men (a men’s rights legal organization) has successfully pushed the topic into the mainstream. Much to the dismay of many women and feminist organizations. But, that backlash has not prevented the rise of the issue. Due to their persistent challenging on a legal level, and their publicly reported court cases, the mainstream media has been forced to address this controversial topic. Should required draft legislation be legal or done away with? If it remains legal, should it be male only, or should it be gender neutral. Instead of treating it as a taboo, news stations and politicians all have to give their opinions on the topic.

Anti-Draft History
In 1971, an anti-war group (The Philadelphia Resistance) gathered young men to challenge this law. Feeling their rights were being violated. In the “Rowland vs Tarr” case, the group (led by Andrew Rowland) had their first case heard by the United States District Court for the Eastern District of Pennsylvania. However, it failed due to the fact that the draft was discontinued. This group of men petitioned again in 1974 in the dubbed “Goldberg vs Tarr” case. Robert Goldberg (a medical student at Penn State) was amongst those whom objected. They attempted to get the ruling passed before the registration. However, Rostker (the director of the Selective Service System) filed an appeal and the registration began as scheduled. By 1981, Rostker vs Goldberg moved up to the Supreme Court. However, they ruled that this all-male draft was in fact constitutional.

In 2012, Michael B. Elgin and several other employees of the U.S. Department Of the Treasury, were fired for failing to register for Selective Service. In accordance to Title 5 of The United States Code, any federal executive who committed this crime is forbidden from positions of that caliber. Elgin challenged his discharge, citing the fact that the law only applies to men (and therefore only affects male employees) as a constitutional issue. An administrative judge dismissed the challenge, finding the removal legally fair and not entitled to the Merit Systems Protection Board. He appealed to The United States District Court for the District of Massachusetts, which denied his claims. He then appealed to the U.S. Court Of Appeals for the First Circuit, but they claimed to have no jurisdiction over the matter. Finally, he appealed to the United States Supreme Court, who again rejected his claim.

The National Coalition For Men Legislation
The Supreme Court constantly cited women’s legal limitations in combat roles as a reason for women not to be drafted. However, there were several crucial law changes in the 2010s. Between 2013 and 2015, the Pentagon removed several restrictions of women voluntarily serving in combat. This led the question of the all-male draft/Selective Service back into question. Women no longer being legally restricted from combat, now makes the need for a male-only registration outdated. Therefore, the law would be unconstitutional.

The National Coalition For Men (NCFM), a men’s rights legal organization, had plans to get rid of the gendered registration, by declaring a male-only draft “unconstitutional”. Despite their lack of financial resources and low lobbying power, the NCFM were actually given the time of day by legislators.

>On April 4, 2013, they filed a lawsuit against the Selective Service System in the United States District Court for the Central District of California. They argued that the Rostker vs Goldberg result was no longer applicable, due to the Pentagon’s ruling of women in combat. The court originally dismissed the case, due to the fact that women were still not completely transitioned into all combat roles (that completion happened in 2015).

>In 2016, the U.S. Court of Appeals for the Ninth Circuit reversed that dismissal citing the full transition as a reason for the case to be remanded. The case was sent back to the district court. However, the case was later moved to the United States District Court for the Southern District of Texas in the Fifth Circuit.

>The case gained so much legal traction, it got the attention of the U.S. Congress. In 2016, they created the National Commission on Military, National, and Public Service. It was an independent bipartisan advisory commission tasked with evaluating the Selective Service System. They were trying to decide whether women should be required to register with the Selective Service, or if they should do away with the Selective Service System to avoid the gender inequality issue.

>On January 2019, they released an interim report outlining the various options. On February 2019, Judge Gray H. Miller (who was appointed by former president George W. Bush) issued a declaratory judgement. He ruled the male-only draft to be a violation of the Due Process Clause of the Fifth Amendment to the United States Constitution. However, the ruling did not specify which action the government would take to resolve the conflict. Whether or not to abolish the draft or apply it in a gender neutral manner.

The Stall Of The Century
Depsite the ruling in favor of the NCFM in 2019, the government stalled the ruling and had never inacted the policy.
Since then, the Eagle Forum (a conservative organization) filed an amicus curiae brief supporting the male only draft and asking the Court Of Appeals to reverse the decision.
On the flip side a large series of organizations jumped on the bandwaggon with the NCFM by filing an amicu curiae to uphold the Court Of Appeals decision of finding the all male draft unconstitutional. The filing was done by the American Civil Liberties Union, the American Civil Liberties Union Foundation of Texas, 9to5 National Association of Working Women, A Better Balance, Gender Justice,  KWH Law Center for Social Justice and Change, National Organization for Women Foundation, National Women’s Law Center, Women’s Law Center of Maryland, and Women’s Law Project.
As a result, on March 3, 2020 (at Tulane Law School in New Orleans) a 3 judge panel of 5th Circuit Court of Appeals held oral arguments about the appeal to the ruling. The argument for the current draft to be seen as unconstitutional was consistently the same. While the argument against it, led by Claire McCusker Murray (the 3rd ranking official in the Department of Justice) argued against the decision on the grounds of “Supreme Court deference”. In the 1981 Roster vs. Goldberg case (see “Anti-Draft History at the top of this article for more details), the case decided that only the Supreme Court has the authority to reverse the law, and not the District Court. By August 13, 2020 the panel agreed with Murray and decided to reverse the District Court judgement.

Supreme Court
Despite the recent ruling, the NCFM persisted in their efforts. On January 8, 2021 the NCFM (represented by the ACLU and Hogan Lovells) filed a petition asking the Supreme Court to review the decision of the 5th Circuit Court of Appeals. On April 15, 2021 president Joe Biden weighed in on the topic, asking the Supreme Court to reject the measure. Calling the challenge “premature”. On June 7, 2021 the Supreme Court declined to review the case. Justices Sonia Sotomayor, Stephen Breyer, and Brett Kavanaugh gave their opinion on supporting the decision. They claimed that Congress was “actively” evaluating to remove the male-only requirement of the draft through the 2016 Comission. They also cited that the Supreme Court has a long standing deference to Congress on military affairs, and claimed that they couldn’t grant a review while Congress weighs the issue.

A Short Stint
In June 2021, the Senate Armed Service Committee voted (21-5) to add women to the draft registration system. In September, the House Armed Servie Committee voted (35-24) to approve the measure. This measure was added to the National Defense Authorization Act for Fiscal Year 2022 with bipartisan support. However, a small vocal group of conservatives backlashed against the measure.
Republican Senator Joh Hawley led the charge against the provision in the Senate. Other Republican senators such as Marco Rubio, Mike Lee, James Lankford, Steve Daines, and Roger Wicker joined Josh in the prevention. Republican Mary Miller (U.S. Representative from Illinois’s 15th Congressional District) introduced the “Don’t Draft Our Daughters” resolution to prevent women from being registered. Republican Charles “Chip” Roy (U.S. Representative for Texas’s 21st Congressional District) joined on the measure.
Concerned Women for America, a socially conservative women’s legislative action committee helped promote the “Don’t Draft Our Daughters” resolution on their website and urged other people to contact their politicians and influence them to fight against adding women to the registration.
Despite the bipartisan support and a successful vote, the discriminatory nature of a male only draft was stripped away from the NDAA bill due to the backlash from a loud minority of social conservatives. They blamed the “liberals” of a culture war that would “harm women”. Ummm….have they not been paying attention to the ongoing legal fight that’s been happening by the NCFM for several years? Or are they just using “liberals” as a buzzword to convince their base to fight against it? Probably the latter. Either way, it’s still immoral on their part.

Backlash
Despite this specified lack of ruling, women and feminists claimed (despite lack of knowledge) that the ruling would be applied in a gender neutral manner. Not wanting to settle for equality, they backlashed against this ruling and got angry at men’s rights activists for “forcing women to register”. Claiming that holding women to the same standard as men was “purely misogynistic” and that men’s rights activists were trying to harm/punish women.
On March 12, 2019 Kathi Valeii wrote an article called “How Men’s Rights Groups Use The Rhetoric Of Equality To Punish Women”. In the article, Kathi falsely states that the NCFM are filled with “white men” who are trying to prevent the rise of women’s programs and affirmative action. She started listing a series of women’s issues that exist (in an article that’s supposed to be about the draft). She goes on to claim that the legislation is meant to pull women down and force women to be registered as an “aha” against feminists-despite the fact that no such wording or framing of the legislation implies this at all.
On March 4, 2020 Madeleine Holden wrote an article for Mel Magazine called “Why Are MRAs So Obsessed With Making Sure Women Are Eligible For The Draft, Too?” Similar to the other article, it’s propaganda based on false assumptions. In the article, Madeleine falsely states that the NCFM is forcing women to sign up for Selective Service (of course with a lack of evidence). She also falsely asserts that feminist groups are anti-war and that the NCFM isn’t. She then states that other advocates have the best interest of powerless men at heart, while the MRM doesn’t.
On March 2, 2019 Beau Of The Fifth Column went on to make a video slandering the entire situation. He claims that MRAs was attempting to add women to the draft in order to make women more vocal about what’s wrong with the draft. His claim is completely unfounded. The NCFM has not cited the idea of women being added to the draft, nor was that in the legislation. The NCFM simply opposed a male-only selective service, calling it immoral and unconstitutional. The agreement with the NCFM has not at all went into detail about whether or not women would be added to Selective Service or whether it would be done away with altogether. So arguing against this legislation on the basis of “drafting women” is completely dishonest. He went on to make a horrible hypothetical of the Civil Rights Movement taking away everyone’s human rights instead of expanding voting rights. Again, this is a horrible comparison because the NCFM didn’t pass a law to force women to be drafted. It just passed a law saying that the all-male draft is discriminatory.

On July 28, 2022 The American Friends Service Committee (a Quaker social justice organization) had a webinar about Selective Service. They spoke about the need to do away with the draft altogether. Which sounds fine on the surface.
However, as the meeting went on the AFSC spoke about their “feminist” support and went on to slander the NCFM. One of their false claims was that the NCFM has a history of “violence against women” (30:22-30:35). They then claimed that the NCFM shifted the conversation to adding women (which again is an unfounded claim).
Essentially, this no name group which claims to be fighting against the draft altogether, falsely portrays the NCFM as “hijacking” the discussion and making it too difficult for them to get the law passed. When, in reality, this group had no real legal standing or platform on the issue to begin with. Secondly, their not even fullyy educated on the topic to begin with. As stated multiple times, the NCFM’s proposal was to make the all-male draft unconstitutional. It’s never pushed to “add women” to the draft. That was an argument between the government on how they would handle the situation before it was shot down.

Small Support
Ever since the NCFM fought hard and nearly won the legislation, there has been a slight cultural shift in opinion on the issue. Here are a few examples.

On June 17, 2022 The Heritage Foundation (a conservative think tank) wrote an article called “Don’t Draft Our Daughters-or Anyone Else”. In the article the author argued that U.S. conscription serves no useful military purpose and should be done away with altogether.

On August 16, 2022 Mac Hamilton wrote an article called “Don’t Draft Our Daughters-or Our Sons”. She published it in Ms. Magazine (a historically radical feminist website). In the article she encouraged Democrats, who introduced the measure into the NDAA, to instead create a bipartisan effort to abolish the Selective Service once and for all.

On February 7, 2016 The Young Turks (a progressive news organization that infamously antagonized MRA public face Karen Straughan), agreed with the measure that women should in fact be added to Selective Service as they felt confident that a “draft” wouldn’t return anytime soon.

Conclusion
Currently, as it stands, male only registration is legal. However, the mere fact that this topic (that’s been ignored for decades) is now a common topic of discussion, is a small victory. A victory that should inspire people to keep fighting in this direction. This is a topic that can no longer be ignored and will now be apart of the political discussion, thanks to the NCFM (as well as the people who backed them up). Also people are now more open to speaking against registration altogether now that they see the possibility of women being drafted. Overall, this is a rare successful instance for men’s rights groups and they should continue to fight on this front until they get justice.

Source (s)
Rostker vs. Goldberg
Elgin vs. Department of Treasury
National Coalition for Men vs. Selective Service System
United States Court Of Appeals for the Ninth Circuit
Kathi Valeii Draft Propoganda
Mel Magazine
Law 360
Amicus Curiae
Appeal Discussion
CNBC
The Hill