But that was before the Dec. 3 decision by Defense Secretary Ashton B. Carter to open all military combat roles to women. During a lively, 30-minute session, that announcement was fresh on the judges’ minds.
The plaintiffs’ attorney, Marc Angelucci, began to explain why the current registration law unconstitutionally violates the equal protection clause when Judge Marsha S. Berzon jumped in.
“The circumstances have changed,” said Berzon, seated in the middle tan leather seat in the spacious courtroom.
“The circumstances have indeed changed,” Angelucci replied.
“Go ahead and argue a useless point,” Berzon added, emphasizing later that “I didn’t say it was unripe. I said there were different circumstances now.”
Angelucci went on to explain how women have long been serving in combat roles prior to the draft registration requirement but was cut off by Judge Ronald M. Gould, who along with Berzone and Judge George C. Steeh will consider the case. “It seems to me that there’s no need to argue,” Gould said, speaking to the court via video feed. “The question is ripe now, in light of what the Department of Defense has said so clearly.”
The lower court didn’t address that question, Gould noted, “so why is it your position then that our panel should reverse the… decision now so the district court can get to the merits” of the case?
“That is probably what we should do, and you can save your time,” he said, adding he “disagreed” somewhat with Berzon over the “question of ripeness.”
That question of whether the court’s action would be premature or even necessary in light of Carter’s decision remains to be settled.
In announcing that all military jobs will be open to men and women, Carter did not specify whether women will have to register for selective service, which nearly all men must do when they turn 18 and until they turn 26. The department by law has 30 days to submit an analysis to Congress that presumably would include views about any change to registration requirements.
A two-page “detailed legal analysis” issued by the Defense Department reiterated the government’s contention that, in line with the 1981 decision Rostker v. Goldberg, which upheld the male-only registration, also provided a “deference to Congress in military affairs.” It did not state, however, what if any change to the registration law would be offered.
The government argued in papers filed in the initial lawsuit that it “is not yet fit for judicial decision because the full implementation of the changes to the structure of the United States armed forces has not yet been revealed and Congress has not yet had the opportunity to consider how the MSSA (Military Selective Service Act) should be changed in light of those implementation plans.”
“This case is no more ripe today than it was before the district court” ruled in 2013, Sonia McNeil, a U.S. attorney, told the court. “It would not be appropriate” to even argue the case on its merits because the plaintiffs lack standing and haven’t proved an injury. McNeil and Berzon engaged in a back-and-forth disagreement about the case’s “ripeness” before arguing over whether the plaintiffs have legal footing to bring the case to court.
McNeil noted that Congress still has to review the proposed policy change and said action “may obviate the need for the court.” She persisted with her arguments but the judges weren’t yet persuaded and, at one point when discusing the district court’s action, Berzon told McNeil “you can argue with them as much as you’d like.”
“I would certainly think it would be better… to tell everybody to cool it for six months or longer… while Congress considers it,” Berzon added.
Angelucci, given an opportunity to rebut the government’s argument, told the court that the male-only requirement does unequal harm. “I have to sometimes restrain myself when I hear some say there is no harm,” he said, “when somebody is being forced to be an on-call warrior because of just their gender.”
Men who register also are supposed to keep their information updated, including notifying Selective Service of their new addresses when they move, “for six years,” he said, adding women don’t have that requirement hanging over them.
Angelucci later said the judges’ comments and rhetorical questions caught him a bit off-guard because he had anticipated he’d have to argue why the case was timely when it was filed in 2013, just as the Pentagon was taking steps toward possible lifting of the combat-exclusion law.
He’s guardedly optimistic. “I think this is going to be remanded, and I’m very happy,” he said outside the courthouse, “assuming it’s done.”
Absent from the hearing was Lesmeister, the other lead plaintiff, but several members of the San Diego-based National Coalition for Men attended the hearing. Harry Crouch, the organization’s president, said he was surprised but pleased to hear the judges’ comments.
The courtroom arguments prompted spirited discussion that continued in the halls and outside the building.
“The harm to men is they take all the combat stress” during a draft “and it’s not equally distributed among the genders,” said Fred Sottile, an author and coalition member. “When you are 17 and a man, you realize you are signing up for something that could be very disastrous in your life. It’d only take a blink of an eye… and all of a sudden, you are going to go to combat.”
“Women,” he said, “live a life where this is never an eventuality.”
“And they are equal under the law,” noted Crouch.
Elton Campbell, an Army veteran and draftee, said women’s exclusion “gives them a false sense of superiority.” “They are the protected class,” added Sottile. “Their national commitment is not as great as a man’s.”
Campbell said having women also be required to register as men means she “in my opinion would be a full citizen,” with equal civic responsibilities.
“This is also psychologically a very heavy deal,” Sottile said, who said he signed up in 1973 for the draft when he was 18.
Will women also bear that burden? “The day that a mother has to tell her 17-year-old girl, You do understand you might have to go into combat if the trade towers are hit or whatever, you get that, right baby? And she says, I might have to what? All of a sudden, the flag looks differently when it waves.”
Meanwhile, the Selective Service’s website stated on its banner: “REGISTER: It’s What a Man’s Got to Do. It’s quick, it’s easy it’s the Law.” The website also had this notice: “FEMALES & REGISTRATION: While there has been talk recently about women in combat, there has been NO decision to require females to register with the Selective Service, or be subject to a future military draft. Selective Service continues to register only men, ages 18 through 25.”