On Thursday last week, Virginia failed to ratify the proposed Equal Rights Amendment to the United States Constitution. But the very next day, a judge in Houston, Texas issued a ruling that seems to adopt the amendment through the back door.
U.S. District Judge Gray H. Miller of the United States District Court for the Southern District of Texas ruled Friday that it is unconstitutional to require men, but not women, to register for the military draft.
The Selective Service System requires men to register for the draft within 30 days of their 18th birthdays. The United States has not employed a military draft since 1973, but the registration requirement was reactivated in 1980 as a contingency.
Opponents of the ERA have long argued that the amendment would eliminate all sex-based classifications, irrespective of biology or common sense. An oft-expressed concern is that, if ratified, the ERA would require women to register for the draft.
ERA opponents argue, correctly, that women are already guaranteed equal rights by the 14th Amendment, which states that the government may not “deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause prohibits sex-based classifications that are not substantially related to an important government interest. Unlike the ERA, however, it does not automatically outlaw all government policies that distinguish between men and women.
In the 1981 case of Rostker v. Goldberg, the Supreme Court held that the male-only draft did not violate the Equal Protection Clause. At that time, however, women were ineligible for combat.
In 2015 the Pentagon lifted restrictions for women in combat, and plaintiffs in the Texas case argued that changed circumstances rendered the male-only registration policy unconstitutional. Judge Miller agreed, rejecting the defendants’ argument that female eligibility for combat does not require female conscription.
The Texas case was brought by the National Coalition for Men, which claimed the policy is unfair to males. According to the Washington Post, a woman seeking to register for the draft is also challenging the policy in federal court New Jersey. The Post notes that an 11-member commission studying the future of the Selective Service System has been monitoring both cases closely and is expected to make recommendations to Congress next year.