National Coalition for Men et al v. Selective Service System et al

Filing 87

MEMORANDUM OPINION AND ORDER GRANTING 73 MOTION for Summary Judgment , DENYING 80 MOTION to Stay ProceedingsCross MOTION for Summary Judgment , DENYING 60 Plaintiff's request for injunction. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NATIONAL COALITION FOR MEN, et al.,
Plaintiffs,
v.
SELECTIVE SERVICE SYSTEM, et al.,
Defendants.

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CIVIL ACTION H-16-3362

MEMORANDUM OPINION AND ORDER
Pending before the court is: (1) a motion for summary judgment filed by plaintiffs National
Coalition for Men (“NCFM”), Anthony Davis, and James Lesmeister (“Plaintiffs”) (Dkt. 73); and
(2) a cross-motion for summary judgment and motion to stay filed by defendants Selective Service
System (“SSS”) and Lawrence Romo (collectively, “Defendants”) (Dkt. 80). Plaintiffs responded
to Defendants’ cross-motion. Dkt. 81. Having considered the motions, response, evidence in the
record, and applicable law, the court is of the opinion that Plaintiffs’ motion for summary judgment
(Dkt. 73) should be GRANTED and Defendants’ motion for stay and summary judgment (Dkt. 80)
should be DENIED.
I. BACKGROUND
This case balances on the tension between the constitutionally enshrined power of Congress
to raise armies and the constitutional mandate that no person be denied the equal protection of the
laws. U.S. Const. art. I, § 8; U.S. Const. amend. V; Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct.
693 (1954).
The Military Selective Service Act (“MSSA”) requires males—but not females—to register
for the draft. The MSSA provides that “every male citizen of the United States, and every other male

person residing in the United States . . . between the ages of eighteen and twenty-six,” must register
with SSS. 50 U.S.C. § 3802(a). After registering, men have a continuing obligation to update SSS
with any changes in their address or status. § 3813. Failure to comply with the MSSA can result in
up to $10,000 in fines and five years of imprisonment. § 3811(a). Males are also subject to other
penalties for failing to register, including denial of federal student loans. § 3811(f).
Plaintiffs challenge the MSSA on equal protection grounds, arguing that the MSSA’s maleonly registration requirement violates the Fifth Amendment Due Process Clause. Dkt. 60 at 12.
Plaintiffs Lesmeister and Davis are males subject to the draft requirements.1 Dkt. 73-2 at 1–2. Both
have registered with the SSS, in compliance with the MSSA. Id. NCFM is a non-profit, 501(c)(3)
educational and civil rights corporation. Id. at 3. Some of NCFM’s members, including Davis, are
males subject to the draft requirements who have already registered or will have to register under the
MSSA. Id. at 3–4.
In 2013, NCFM and Lesmeister filed suit against Defendants in the Central District of
California. Dkt. 1. Initially, Judge Dale S. Fischer, the Central District of California judge,
dismissed the case as not ripe for review. Dkt. 20. The Ninth Circuit reversed and remanded,
holding that the plaintiffs’ claims were “definite and concrete, not hypothetical or abstract, and so
ripe for adjudication.” Nat’l Coal. for Men v. Selective Serv. Sys., 640 F. App’x 664, 665 (9th Cir.
2016) (citations and quotations omitted). On remand, Judge Fischer granted Defendants’ motion to
dismiss NCFM without prejudice because the organization lacked associational standing. Dkt. 44
at 4. Further, the court determined that venue was not proper in the Central District of California
and transferred the case to the Southern District of Texas, where Lesmeister resides. Id. at 5.

1

Plaintiffs request judicial notice of certain facts in this case. Dkt. 73-2. To the extent
Plaintiffs request judicial notice of facts that are not in dispute, the court grants this request.
2

Upon transfer, Lesmeister amended his complaint to name NCFM and Davis as plaintiffs.
Dkt. 60. This court subsequently determined that all three plaintiffs have standing. Dkt. 59. Both
Plaintiffs and Defendants now move for summary judgment, arguing that current equal protection
jurisprudence entitles them to judgment as a matter of law.2
II. ANALYSIS
A.

Motion to Stay
“The proponent of a stay bears the burden of establishing its need.” Clinton v. Jones, 520

U.S. 681, 708, 117 S. Ct. 1636 (1997). In their pending motion, Defendants first contend that the
court should stay the current proceedings. Dkt. 80 at 15–21. Defendants argue that the case is not
ripe for review because Congress is currently considering whether to add women to the draft. Id.
Defendants also argue that, under separation-of-power principles, the court should postpone
resolution of the case during congressional debate on the issue. Id. Finally, Defendants urge the
court to stay the case using its inherent case-management power because the balance of hardships
weighs in Defendants’ favor. Id.
1.

Ripeness

The justiciability doctrine of ripeness prevents courts, “through avoidance of premature
adjudication, from entangling themselves in abstract agreements.” Choice Inc. of Tex. v. Greenstein,
691 F.3d 710, 715 (5th Cir. 2012) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S. Ct.
1507 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977)). A court
must dismiss for lack of ripeness when the case is “abstract or hypothetical.” Id. (quoting New

2

A court shall grant summary judgment when a “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Here, both sides have moved for summary judgment, so the parties agree that there
are no material fact issues to resolve. Dkt. 73; Dkt. 80.
3

Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583, 586 (5th Cir. 1987)). “Ripeness
‘requir[es] us to evaluate both the fitness of the issues for judicial decision and the hardship to the
parties of withholding court consideration.’” Texas v. United States, 523 U.S. 296, 300–01,
118 S. Ct. 1257 (1998) (quoting Abbott Labs., 387 U.S. at 149). “A case is generally ripe if any
remaining questions are purely legal ones; conversely, a case is not ripe if further factual
development is required.” Choice Inc. of Tex., 691 F.3d at 715 (quoting New Orleans Pub. Serv.,
Inc., 833 F.2d at 586).
Defendants argue that the case is not currently fit for judicial decision because Congress
recently established the National Commission on Military, National, and Public Service (“the
Commission”) to consider whether Congress should modify or abolish the current draft registration
requirements. Dkt. 80 at 17; National Defense Authorization Act for Fiscal Year 2017, Pub. L. No.
114-328, § 551, 130 Stat. 2000, 2130 (2016). Although the Ninth Circuit previously held that the
case was ripe despite ongoing congressional debate, Defendants contend that the recently created
Commission now renders Plaintiffs’ claims unripe. Id. at 19. Defendants request that the court stay
proceedings until the Commission has issued its report and Congress has had the opportunity to act
on the Commission’s recommendations. Id. at 21.
However, the existence of the Commission does not affect the ripeness of Plaintiffs’ claims.
The question of whether the MSSA violates the Constitution is purely legal; no further factual
development is necessary for the court to decide the issue. Plaintiffs’ claims are not “abstract or
hypothetical.” Choice Inc. of Tex., 691 F.3d at 715 (quoting New Orleans Pub. Serv., Inc., 833 F.2d
at 586)). While the Commission’s recommendations could affect the current proceedings, the
Commission is not set to release its final report until 2020. Dkt. 86-1 at 4 (Commission interim
report). There is no guarantee that the Commission will recommend amending or abolishing the
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MSSA—and, even if it does, Congress is not required to act on those recommendations. Congress
has been debating the male-only registration requirement since at least 1980 and has recently
considered and rejected a proposal to include women in the draft. Rostker, 453 U.S. at 60; Dkt. 80-3
at 11 (Letter to Armed Services Committee Chairs, Sept. 2016). It is Defendants’ arguments—not
Plaintiffs’ claims—that are too hypothetical for the court’s consideration.3
“However, even where an issue presents purely legal questions, the plaintiff must show some
hardship in order to establish ripeness.” Choice Inc. of Tex., 691 F.3d at 715 (citing Cent. & S. W.
Servs., Inc. v. EPA, 220 F.3d 683, 690 (5th Cir. 2000)) (quotations omitted). Here, Plaintiffs have
demonstrated that they are subject to the MSSA. Dkt. 73-2. NCFM’s members include individuals
who will have to register under the MSSA in the future and will be subject to ongoing requirements
to update their personal information. Id. Moreover, “discrimination itself, by perpetuating ‘archaic
and stereotypic notions’ . . . can cause serious non-economic injuries to those persons who are
personally denied equal treatment solely because of their membership in a disfavored group.”
Heckler v. Mathews, 465 U.S. 728, 739–40, 104 S. Ct. 1387 (1984) (citations omitted). Thus,
Plaintiffs have shown “some hardship” and the case is ripe.
2.

Separation of Powers

Second, Defendants effectively argue that the court must grant a stay to give Congress proper
deference in the realm of military affairs and avoid violating the separation of powers. Dkt. 80
at 11–13. Defendants cite Congress’s broad constitutional power to conduct military affairs and the
Supreme Court’s decision in Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 2646 (1981). Dkt. 80 at

3

Defendants also argue that deference to Congress is appropriate when pending legislation
may render a legal challenge moot, and that such deference applies here. Dkt. 80 at 19–20 (citing
Schlesinger v. Ballard, 419 U.S. 498, 510 n.13, 95 S. Ct. 572 (1975)). However, Defendants do not
cite any pending legislation that would add women to the draft.
5

17–19. However, “separation of powers does not mean that the branches ‘ought to have no partial
agency in, or no controul over the acts of each other.’” Clinton, 520 U.S. at 703 (quoting The
Federalist No. 47, at 325–326 (James Madison) (J. Cooke ed., 1961) (emphasis in original)). Even
judicial review that “significantly burden[s] the time and attention” of another branch “is not
sufficient to establish a violation of the Constitution.” Id. The Supreme Court has repeatedly
affirmed that “concerns of national security . . . do not warrant abdication of the judicial role.”
Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010).
Rostker itself expressly acknowledged that Congress does not receive “blind deference in the
area of military affairs.” 453 U.S. at 67. Even though congressional power in this area is “broad and
sweeping,” Congress may not “exceed[] constitutional limitations on its power in enacting such
legislation.” Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 58, 126 S. Ct. 1297
(2006) (citations and quotations omitted). As this court previously reasoned:
The court agrees with Defendants that Congress has broad power to
raise and regulate armies and navies. Rostker, 453 U.S. at 65. Thus,
“a healthy deference to legislative and executive judgments in the
area of military affairs” should be given by the court. Id. at 66.
Rostker thoroughly explained the reason to provide deference to
Congress when dealing with military affairs. See id. at 64–67. But
“[n]one of this is to say that Congress is free to disregard the
Constitution when it acts in the area of military affairs. In that area,
as any other, Congress remains subject to the limitations of the Due
Process Clause.” Id. at 67.
Dkt. 66 at 6–7 (denying Defendants’ motion to dismiss for failure to state a claim). Rostker
explicitly requires Congress to comply with the Constitution in the area of military affairs, and
Plaintiffs allege that the MSSA violates the Constitution. Rostker, 453 U.S. at 67; Dkt. 60 at 12.
Additionally, as noted above, Congress has been debating the MSSA’s registration requirement for
decades with no definite end in sight. Even constitutionally mandated deference does not justify a
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complete and indefinite stay when parties allege that the federal government is presently violating
their constitutional rights.
3.

Inherent Power

Finally, Defendants request that the court exercise its discretion to stay the case. This court
“has broad discretion to stay proceedings as an incident to its power to control its own docket.”
Clinton, 520 U.S. at 706. Even if the burdens on the government do not violate separation-of-powers
principles, “those burdens are appropriate matters for the District Court to evaluate in its
management of the case.” Id. at 707. “[T]he power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the causes on its docket with economy of time
and effort for itself, for counsel, and for litigants.” Qualls v. EOG Res., Inc., No. H-18-666, 2018
WL 2317718, at *2 (S.D. Tex. May 22, 2018) (Miller, J.) (alteration in original) (quoting Landis v.
N. Am. Co., 299 U.S. 248, 254, 57 S. Ct. 163 (1936)). The movant must “make out a clear case of
hardship or inequity in being required to go forward.” Landis, 299 U.S. at 254.
Defendants contend that a court ruling at this time “could disrupt or distract a process that
may ultimately render [the issue] moot” if the Commission recommends “ending registration in its
entirety.” Dkt. 80 at 18; see also Dkt. 80 at 21 (“Alternatively, such a ruling could require the
Government to spend millions of dollars and expend significant resources and effort changing the
system of selective service—a considerable hardship—when Congress may wish to change the
system in a completely different manner following the Commission’s review.”). However, if the
court stayed the case until Congress acted on the Commission’s recommendations, the case could
be stayed indefinitely. The Commission is under no obligation to recommend certain outcomes to
Congress, and Congress is under no obligation to follow or act on those recommendations. The fact

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and nature of future congressional action is highly speculative. Thus, the court’s time and effort is
likely best spent on the case at this stage, rather than at some indefinite time in the future.
Moreover, present resolution of the case will not create such a hardship for Defendants that
the hardship justifies a continuous and indefinite violation of Plaintiffs’ constitutional rights.
Congressional resolution of this issue, if it occurs, will not necessarily be less burdensome for
Defendants than judicial resolution. Defendants have not made out a “clear case of hardship or
inequity.” Landis, 299 U.S. at 254. Therefore, the court declines to use its inherent authority to stay
the case.
B.

Rostker v. Goldberg and Changing Opportunities for Women in the Military
On substance, Defendants first argue that the Supreme Court’s holding in Rostker v.

Goldberg, 453 U.S. 57, 101 S. Ct. 57 (1981), forecloses any challenge to gender discrimination in
the MSSA. Dkt. 80 at 21–22. However, as this court previously held in denying Defendants’ motion
to dismiss, Rostker is factually distinguishable from the current case. Dkt. 66 (order denying
Defendants’ motion to dismiss for failure to state a claim). The court again declines to resolve the
case on Rostker alone.
1.

The Rostker Opinion

In Rostker, the Supreme Court squarely addressed the question of whether the male-only
registration requirement in the MSSA violated equal protection principles. 453 U.S. at 83. The
Court first noted that judging the constitutionality of a statute passed by Congress is “the gravest and
most delicate duty that this Court is called upon to perform.” Id. at 64 (quoting Blodgett v. Holden,
275 U.S. 142, 148, 48 S. Ct. 105 (1927)). Further, the case arose “in the context of Congress’
authority over national defense and military affairs, and perhaps in no other area has the Court

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accorded Congress greater deference.” Id. at 64–65. Thus, the Rostker Court emphasized that it
owed great deference to Congress’s judgment in passing the MSSA because “the Constitution itself
requires such deference to congressional choice.” Id. at 67.
The Court held that the MSSA was constitutional. Id. at 83. After considering the extensive
legislative history of the MSSA, the Court concluded that “the decision to exempt women from
registration was not the accidental by-product of a traditional way of thinking about females.”
Id. at 74 (quotations omitted). Instead, the Court acknowledged that women were not eligible for
combat, but that the purpose of registration was to prepare for a draft of combat troops. Id. at 76–77.
The Court reasoned:
This is not a case of Congress arbitrarily choosing to burden one of
two similarly situated groups, such as would be the case with an allblack or all-white, or an all-Catholic or all-Lutheran, or an allRepublican or all-Democratic registration. Men and women, because
of the combat restrictions on women, are simply not similarly situated
for purposes of a draft or registration for a draft. Congress’ decision
to authorize the registration of only men, therefore, does not violate
the Due Process Clause.
Id. at 78–79. Thus, the Court concluded that women’s ineligibility for combat “fully
justifie[d]” the MSSA’s male-only registration requirement. Id. at 79. “The Constitution requires
that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial
equality.” Id. Because men and women were not similarly situated with respect to combat
eligibility, and therefore not similarly situated with respect to the draft, the Court held that the MSSA
did not violate equal protection principles. Id.
2.

Factual Developments Since Rostker

In the nearly four decades since Rostker, however, women’s opportunities in the military
have expanded dramatically. In 2013, the Department of Defense officially lifted the ban on women
9

in combat. Dkt. 73-1 at 9. In 2015, the Department of Defense lifted all gender-based restrictions
on military service. Dkt. 73-1 at 12. Thus, women are now eligible for all military service roles,
including combat positions.
Therefore, although “‘judicial deference . . . is at its apogee’ when Congress legislates under
its authority to raise and support armies,” Rumsfeld, 547 U.S. at 58 (quoting Rostker, 453 U.S. at
70), the Rostker holding does not directly control here. The dispositive fact in Rostker—that women
were ineligible for combat—can no longer justify the MSSA’s gender-based discrimination.4 “[A]
legislative act contrary to the constitution is not law,” and it is the “province and duty of the judicial
department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177, 5 U.S. 137 (1803).
The court will consider the constitutionality of the MSSA anew.
C.

The MSSA and Equal Protection
1.

Standard of Review

Laws differentiating on the basis of gender “attract heightened review under the
Constitution’s equal protection guarantee.” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689
(2017) (citing Califano v. Westcott, 443 U.S. 76, 84, 99 S. Ct. 2655 (1979)). Typically, “[t]he
defender of legislation that differentiates on the basis of gender must show ‘at least that the
[challenged] classification serves important governmental objectives and that the discriminatory
means employed are substantially related to the achievement of those objectives.’” Id. at 1690

4

Defendants argue that under Rodriguez de Quijas v. Shearson/American Express, Inc., 490
U.S. 477, 484, 109 S. Ct. 1917 (1989), this court is bound by Supreme Court precedent regardless
of a change in factual circumstances. Dkt. 80 at 21–22. However, Rodriguez de Quijas merely notes
that, in the face of two legally conflicting decisions, lower courts should follow the decision most
directly on point instead of attempting to overrule one of the conflicting decisions. 490 U.S. at 484.
Despite Rostker’s undeniable relevance to this case, the Rostker holding is not directly on point and
therefore does not mandate judgment in Defendants’ favor.
10

(quoting United States v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264 (1996)). Further, “the
classification must substantially serve an important governmental interest today”—it is insufficient
that the law served an important interest in the past. Id. (citing Obergefell v. Hodges, 135 S. Ct.
2584, 2603 (2015)) (emphasis in original).
Although the MSSA discriminates on the basis of gender, Defendants argue that a lower,
rational-basis-like standard of review applies. Defendants contend that “the Court’s departures—in
Rostker and other military cases—from core aspects of strict or intermediate scrutiny demonstrates
that its approach most closely resembles rational-basis review.” Dkt. 80 at 23. Defendants
emphasize the Rostker Court’s highly deferential approach to reviewing the MSSA and argue that
recent precedent, including Trump v. Hawaii, 138 S. Ct. 2392 (2018), affirms this lower standard
of review in the military context. Id. at 24.
However, Defendants’ reliance on Trump is misplaced. The Trump decision concerned
judicial review of the President’s power over immigration. 138 S. Ct. at 2420. While the Trump
Court acknowledged that a deferential standard of review applied “across different contexts and
constitutional claims,” the Court’s entire discussion centered on different claims within the realm
of immigration law. Id. at 2419. Certainly, there are significant similarities between the Court’s
deference to Congress in military affairs and its deference to the President in immigration affairs.
However, the Trump decision is tangential, at best, to the issue currently before the court.
Instead, Rostker itself provides the applicable standard of review when Congress exercises
its constitutional power to raise and support armed forces. In Rostker, as here, the government
expressly argued that the Court should “only [] determine if the distinction drawn between men and
women bears a rational relation to some legitimate Government purpose.” 453 U.S. at 69. However,
the Court expressly declined to adopt this position. Id. at 69–70. Rather, the Court relied on
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Schlesinger v. Ballard, 419 U.S. 498, 95 S. Ct. 572 (1975), in which the Court upheld naval
regulations creating different promotion requirements for female officers. Rostker, 453 U.S. at 71.
As the Court explained, “[Schlesinger] did not purport to apply a different equal protection test
because of the military context, but did stress the deference due congressional choices among
alternatives in exercising the congressional authority to raise and support armies and make rules for
their governance.” Id. at 71.
The Court emphasized that the judiciary “cannot ignore Congress’ broad authority conferred
by the Constitution to raise and support armies when we are urged to declare unconstitutional its
studied choice of one alternative in preference to another for furthering that goal.” Id. at 71–72.
However, the Court went on to reason that “the Government’s interest in raising and supporting
armies is an ‘important governmental interest,’” and that “[t]he exemption of women from
registration is . . . closely related to Congress’ purpose in authorizing registration.” Id. at 70, 79
(quoting Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451 (1976)). The Rostker Court therefore
subjected the MSSA to a heightened level of scrutiny, even in light of the Court’s marked deference
to Congress’s “studied choice” between alternatives. Id. at 72.
2.

Analysis

Thus, the dispositive question here is whether the MSSA both serves important governmental
objectives and is substantially related to the achievement of those objectives. Morales-Santana, 137
S. Ct. at 1689. First, “[n]o one could deny” that the governmental objective of raising and
supporting armies is an “important governmental interest.” Rostker, 453 U.S. at 70. However,
Plaintiffs initially counter that registration, and the draft itself, will not necessarily be used to draft
combat troops in future wars. Dkt. 73 at 20–21. Plaintiffs contend that the court should analyze the

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MSSA with the understanding that registrants may be drafted into both combat and non-combat
roles, and that Congress’s important objective should be understood in that light. Id.
However, while future wars may require a draft of non-combat troops, Congress still
understands the draft, as it currently exists, to be for the “mass mobilization of primarily combat
troops.” National Defense Authorization Act, Pub. L. No. 114-328, § 552(b)(4), 130 Stat. at 2131.
This determination is well within Congress’s constitutional role of governing and maintaining
effective armed forces. See Rostker, 453 U.S. at 68. The court’s inquiry is thus restricted to whether
the MSSA’s male-only registration requirement is substantially related to Congress’s important
objective of drafting and raising combat troops.
Next, Defendants must show that the MSSA’s male-only registration requirement is
“substantially related” to Congress’s objective. See Miss. Univ. for Women v. Hogan, 458 U.S. 718,
724, 102 S. Ct. 3331 (1982). “The justification must be genuine, not hypothesized or invented post
hoc in response to litigation. And it must not rely on overbroad generalizations about the different
talents, capacities, or preferences of males and females.”

Virginia, 518 U.S. at 533; see also

Rostker, 453 U.S. at 67 (noting that the Court previously struck down gender-based classifications
that were based on “overbroad generalizations”). “[I]f the statutory objective is to exclude or
‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or
to be innately inferior, the objective itself is illegitimate.” Mississippi Univ. for Women, 458 U.S.
at 724 (citing Frontiero v. Richardson, 411 U.S. 677, 691, 93 S. Ct. 1764 (1973) (plurality opinion)).

13

Defendants offer two potential justifications for male-only registration.5 First, Defendants
argue that female eligibility to serve in combat roles “does not answer the question of whether
women should be conscripted into combat roles” because conscription could lead to “potential
tradeoffs” for the military. Dkt. 80 at 27 (emphasis added). Construed liberally, Defendants appear
to be arguing that requiring women to register for the draft would affect female enlistment by
increasing the perception that women will be forced to serve in combat roles. Id. at 28; Dkt. 80-3
at 173.
However, this argument smacks of “archaic and overbroad generalizations” about women’s
preferences. Schlesinger, 419 U.S. at 507–08; see also Virginia, 518 U.S. at 533; Rostker, 453 U.S.
at 67. At its core, Defendants’ argument rests on the assumption that women are significantly more
combat-averse than men. Defendants do not present any evidence to support their claim or otherwise
demonstrate that this assumption is anything other than an “ancient canard[] about the proper role
of women.” Rostker, 453 U.S. at 86 (Marshall, J., dissenting) (quotations and citations omitted).
As the Court reasoned in Schlesinger:
5

In 2016, a Senate-passed version of the National Defense Authorization Act (“NDAA”)
would have required women to register for the draft. Dkt. 80-3 at 11 (Letter to Armed Services
Committee Chairs, Sept. 2016). The Senate Armed Services Committee acknowledged that “the ban
of females serving in ground combat units has been lifted by the Department of Defense, and as such,
there is no further justification to apply the selective service act to males only.” S. Rep. No. 114255, at 150–51 (2016). However, opposition to this change remained, and the final version of the
NDAA instead created the Commission to explore a number of draft-related topics. National
Defense Authorization Act, Pub. L. No. 114-328, § 552, 130 Stat. at 2131; see Dkt. 80-3 at 11
(Letter to Armed Services Committee Chairs). However, based on record before the court, Congress
generated very little documentation on why it ultimately declined to amend the MSSA. Defendants
only offer a 2016 letter from a group of senators formally requesting that the House remove the
provision adding women to the draft. Dkt. 80-3 at 11 (Letter to Armed Services Committee Chairs)
(“We should not hinder the brave men and women of our armed forces by entrapping them in
unnecessary cultural issues . . . The provision of the FY17 NDAA requiring women to register for
the Selective Service should be removed.”). Defendants do not offer concerns about “unnecessary
cultural issues” as a justification for the MSSA’s continued discrimination. Thus, the court must
primarily rely on congressional records from previous debates on the MSSA.
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In both Reed and Frontiero[,] the challenged classifications based on
sex were premised on overbroad generalizations . . . that men would
generally be better estate administrators than women . . . [and] that
female spouses of servicemen would normally be dependent on their
husbands, while male spouses of servicewomen would not. In
contrast, the different treatment of men and women naval
officers . . . reflects, not archaic and overbroad generalizations, but,
instead, the demonstrable fact that male and female line officers in the
Navy are not similarly situated with respect to opportunities for
professional service.
419 U.S. at 507–08. It is not a “demonstrable fact” that fewer women will enlist for fear of
being conscripted into combat. This justification fails.
Moreover, this justification appears to have been created for litigation. See Virginia, 518
U.S. at 533. Defendants have not produced any evidence that Congress actually looked to this
concern in declining to add women to the draft. Defendants’ evidence establishes only that Congress
may have considered a similar issue in evaluating the Department of Defense’s decision to open
combat positions to women. See Dkt. 80-3 at 171–74. Thus, although the court must give
significant deference to Congress’s judgment in military affairs, such deference is not implicated
here.
Second, Defendants argue that Congress preserved the male-only registration requirement
out of concern for the administrative burden of registering and drafting women for combat. Dkt. 80
at 28. Unlike Defendants’ first offered justification, Congress considered this issue extensively in
debates over the MSSA. See S. Rep. No. 96-826, at 156–61 (1980); Rostker, 453 U.S. at 81. Thus,
the court’s deference to Congress’s “studied choice” is potentially at its height. Rostker, 453 U.S.
at 72.
Typically, “any statutory scheme which draws a sharp line between the sexes, solely for the
purpose of achieving administrative convenience, necessarily commands ‘dissimilar treatment for

15

men and women who are . . . similarly situated,’ and therefore involves the ‘very kind of arbitrary
legislative choice forbidden by the [Constitution].’” Frontiero, 411 U.S. at 691 (quoting Reed v.
Reed, 404 U.S. 71, 77, 92 S. Ct. 251 (1971)). However, even in light of this general rule, the Rostker
Court considered and deferred to Congress’s administrative concerns. See Rostker, 453 U.S. at
81–82; accord Schlesinger, 419 U.S. at 507–08. The Court distinguished past precedent by noting
that the previous classifications “were based on overbroad generalizations” but that, in contrast,
Congress’s choice to retain the MSSA was based on “judgments concerning military operations and
needs.” Id. at 67–68 (quotations omitted). Thus, Rostker affirms that administrative concerns may
justify statutory gender classifications in service of Congress’s broad power over military affairs.
Congress cited several administrative concerns in its 1980 rejection of adding women to the
draft. The primary concern, again, centered around administrative difficulties caused by the ban on
women in combat. S. Rep. No. 96-826, at 156–61; see also id. at 157 (“The policy precluding the
use of women in combat is, in the Committee’s view, the most important reason for not including
women in a registration system.”). The Committee had also expressed concern that “training would
be needlessly burdened by women recruits who could not be used in combat.” Rostker, 453 U.S. at
81 (quoting S. Rep. No. 96-226, at 9 (1979)). However, as previously discussed, women are now
eligible for and have been integrated into combat units.

Thus, although Congress was

previously concerned about drafting large numbers of people who were categorically ineligible for
combat, this concern factually no longer justifies the MSSA.
However, according to Defendants, Congress also worried about administrative problems
caused by “women’s different treatment with regard to dependency, hardship[,] and physical
standards.” Id. at 28; S. Rep. No. 96-826, at 159. Defendants emphasize that Congress’s concern
about the physical readiness of women for combat has not changed. Dkt. 80 at 28–29. Defendants
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point to an acknowledgment by the Department of Defense that “[t]hose who are opposed” to female
mandatory registration believe “it would be inefficient to draft thousands of women when only a
small percentage would be physically qualified to serve as part of a combat troop.” Dkt. 80 at 28;
Dkt. 73-1 at 145–46 (Department of Defense, Report on the Purpose and Utility of a Registration
System for Military Selective Service, 2017). Therefore, “if men will, for the foreseeable future,
comprise the predominant percentage of persons serving in combat forces, then the basis for the
MSSA has not materially changed.” Dkt. 80 at 29; see Tuan Anh Nguyen v. INS, 533 U.S. 53, 73,
121 S. Ct. 2053 (2001) (noting that equal protection principles do not prohibit acknowledgment of
biological differences between genders).
Again, however, this argument falls short. At the outset, concerns about female physical
ability do not appear to have been a significant factor in Congress’s decision-making process
regarding the MSSA. Instead, Congress mentioned concerns about female physical ability in
passing, within a list, in one sentence of Defendants’ cited report. S. Rep. No. 96-826, at 159. In
contrast, Congress extensively discussed the ban on women in combat. Id. at 156–61. Congress also
focused on the societal consequences of drafting women, such as the perceived impropriety of young
mothers going off to war and leaving young fathers to care for children. Id. at 159. Defendants’
evidence simply does not support the argument that Congress preserved a male-only draft because
of concerns about female physical ability. Again, while the court must defer to Congress, the court
does not have to defer to proffered justifications that have little, if anything, to do with Congress’s
actual judgment on the matter. See Morales-Santana, 137 S. Ct. at 1696–97 (quoting Virginia, 518
U.S. at 533, 535–36) (“It will not do to ‘hypothesiz[e] or inven[t]’ governmental purposes for gender
classifications ‘post hoc in response to litigation.’”).

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Further, under Rostker, the dispositive issue is whether men and women are similarly situated
in regard to the draft. Rostker, 453 U.S. at 79. Thus, the relevant question is not what proportion
of women are physically eligible for combat—it may well be that only a small percentage of women
meets the physical standards for combat positions. However, if a similarly small percentage of men
is combat-eligible, then men and women are similarly situated for the purposes of the draft and the
MSSA’s discrimination is unjustified. Defendants provide no evidence that Congress ever looked
at arguments on this topic and then made a “studied choice” between alternatives based on that
information. Cf. id. at 71–72.
Had Congress compared male and female rates of physical eligibility, for example, and
concluded that it was not administratively wise to draft women, the court may have been bound to
defer to Congress’s judgment. Instead, at most, it appears that Congress obliquely relied on
assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.6
Thus, Defendants’ second proffered justification appears to be an “‘accidental by-product of a
traditional way of thinking about females,’” rather than a robust, studied position. Rostker, 453 U.S.
at 74 (quoting Califano v. Webster, 430 U.S. 313, 320, 97 S. Ct. 1192 (1977)).
In short, while historical restrictions on women in the military may have justified past
discrimination, men and women are now “similarly situated for purposes of a draft or registration
for a draft.” Rostker, 453 U.S. at 78. If there ever was a time to discuss “the place of women in the
Armed Services,” that time has passed. Id. at 72. Defendants have not carried the burden of showing

6

The average woman could conceivably be better suited physically for some of today’s
combat positions than the average man, depending on which skills the position required. Combat
roles no longer uniformly require sheer size or muscle. Again, Defendants provide no evidence that
Congress considered evidence of alleged female physical inferiority in combat—either in 1980 or
2016—and concluded that drafting women was unwise based on that evidence.
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that the male-only registration requirement continues to be substantially related to Congress’s
objective of raising and supporting armies.
IV. CONCLUSION
Defendants’ motion to stay and motion for summary judgment (Dkt. 80) is DENIED.
Although Plaintiffs’ complaint requests injunctive relief, Plaintiffs have not briefed the issue and
their summary judgment motion only requests declaratory relief. Dkt. 60 at 13; Dkt. 73 at 24.
Therefore, Plaintiffs’ request for an injunction (Dkt. 60) is DENIED. Plaintiffs’ motion for summary
judgment (Dkt. 73) is GRANTED.
Signed at Houston, Texas on February 22, 2019.

___________________________________
Gray H. Miller
Senior United States District Judge

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