Court of Appeals Overturns Ruling That Male-Only Draft Registration Requirement Is Unconstitutional

Thursday a 3-judge panel of the 5th Circuit Court of Appeals in New Orleans issued a decision overturning an earlier ruling by a U.S. District Court in Houston that the current Federal law requiring men but not women to register with the Selective Service System for a possible military draft is unconstitutional:

• 5th Circuit opinion (August 13, 2020)
• More about the appeal including my report from the oral argument (March 5, 2020)
• FAQ about the case and the District Court ruling (February 24, 2019)

Significantly, and contrary to some of the early reports on today’s decision, the Court of Appeals did not find that the current male-only draft registration requirement is Constitutional. The Court of Appeals did not reach that question. The Court of Appeals ruled that because the Supreme Court ruled on this question in 1981 in the case of Rostker v. Goldberg, only the Supreme Court could reconsider or reverse that decision, even if the facts on which that decision was based (the exclusion of women from military combat assignments, which ended in 2015) have changed.

The Court of Appeals reversed the District Court’s decision solely on the basis that neither the District Court nor the Court of Appeals has the authority to overturn Supreme Court precedent, and that finding that the facts are different today than in 1981 would amount to overturning the Supreme Court’s legal findings.

The plaintiffs, the National Coalition for Men (NCFM) and two young men subject to the Selective Service registration requirement, argued that the lower courts could find that the Supreme Court’s decision, while still legally correct and valid as applied to the facts in that case or any other case in which the facts were the same, did not control the decision in this case in which the facts were different. The Court of Appeals rejected this argument:

Plaintiffs-Appellees James Lesmeister, Anthony Davis, and the National Coalition for Men sued Defendant-Appellants the Selective Service System and its director… alleging that the male-only military draft is unlawful sex discrimination. The district court granted Plaintiffs-Appellees declaratory judgment, holding that requiring only men to register for the draft violated their Fifth Amendment rights.

Because that judgment directly contradicts the Supreme Court’s holding in Rostker v. Goldberg, 453 U.S. 57, 78-79 (1981), and only the Supreme Court may revise its precedent, we REVERSE.

[T]he district court granted summary judgment for Plaintiffs-Appellees declaring that male-only registration was unlawful… The court reasoned that Rostker no longer controlled because women may now serve in combat. The Government appeals, asserting that Rostker does control and that, regardless of Rostker, male-only registration is still constitutional….

Plaintiffs-Appellees point to no case in which a court of appeals has done what they ask of us, that is, to disregard a Supreme Court decision as to the constitutionality of the exact statute at issue here because some key facts implicated in the Supreme Court’s decision have changed. That we will not do. Rostker forecloses Plaintiffs-Appellees’ claims, so the judgment of the district court is REVERSED and the case DISMISSED.

The plaintiffs have at least an arguable claim that the issue is whether the Supreme Court precedent applies to today’s different facts, rather than whether it was correct with respect to the facts in the earlier case. But this argument is unlikely to resolve the underlying issue. Once this or a similar case reaches the Supreme Court, the Supreme Court will be free to reverse its previous factual findings.

Normally, a decision like the one today by a Court of Appeals would be taken as an invitation for a petition for review by the Supreme Court. But last month — after the oral argument before the 5th Circuit panel but before its decision was announced — the lawyer who had been representing NCFM and the other plaintiffs in this case, Marc Angelucci, was murdered.

Angellucci’s murderer appears to have been Roy Den Hollander, a violent self-described anti-feminist. Den Hollander, whose sexism was so extreme that he had been kicked out of NCFM, was also a lawyer, and represented the plaintiff in another case pending in U.S. District Court in New Jersey also challenging male-only draft registration. Den Hollander was, apparently, jealous of Angelucci’s success, and angry that the New Jersey case had been assigned to a woman judge, Esther Salas, who he assumed would be biased against him as a man (even though his client, the plaintiff in the case, is a woman asserting what she claims is her “right” to be subject to the draft).

Den Hollander took an Amtrak train from New York to Los Angeles, shot Angelucci dead outside his house, returned to New York, went to Judge Salas’ house, shot the judge’s son dead when he answered the door, shot and wounded her husband (Judge Salas was working in her basement home office and escaped physical injury), and then fled, shooting himself dead later that day.

There’s a noteworthy difference between the two cases: The plaintiff in the case in which Den Hollander was involved, Kyle-LaBell v. Selective Service System, is a women seeking a court order requiring the Selective Service System to “allow” her and other women to register for the draft. (As though being subject to the draft were a privilege or benefit rather than a burden.) The case in which Angelucci was involved was brought by men opposed to being required to register.

NCFM has taken no official position, either in public or in court, on whether “equality” with respect to the draft should be achieved by expanding draft registration to include women as well as men, or by ending draft registration entirely. But the posture of the case framed and argued by Angelucci, NCFM v. SSS, actually left the court only one choice: If it found that requiring only men and not women to register was unconstitutional, it could only overturn that law, not expand it to apply to women. The courts have no authority to criminalize that which Congress has not seen fit to criminalize, or extend criminal penalties to additional categories of people.

In a brief conversation in the moot courtroom at Tulane University following the oral argument in NCFM v. SSS before the 5th Circuit panel on 3 March 2020, Angelucci told me that, despite NCFM’s organizational neutrality, he personally opposed anyone being drafted and would support a complete end to draft registration.

The melodramatic and murderous saga of toxic misogyny involving Den Hollander, Angelucci, and Judge Salas’ family has repercussions in the wake of today’s decision by the 5th Circuit. Angelucci was representing all of the plaintiffs in NCFM v. SSS, working — so far as I can tell — pro bono and as a sole practitioner. His death left his former clients technically unrepresented, and no new lawyer has filed an appearance for them yet.

Much will depend on who, if anyone, NCFM and/or the other plaintiffs can find to take their case to the Supreme Court, and how quickly they can do so. A well-crafted petition for certiorari to the Supreme Court would have a substantial chance of success, but it’s not clear who would prepare such a petition now. Some of the amici who filed briefs in support of the plaintiffs in the 5th Circuit might offer to represent the plaintiffs in an appeal to the Supreme Court. But it’s not clear whether those amici would be willing or able to agree with NCFM on how to frame and argue the case. If NCFM and/or the other plaintiffs find new counsel to represent them, the Supreme Court would probably be receptive to a request for an extension of time to file a petition for certiorari, in light of the circumstances, but that request would itself need to be filed in time.

NCFM may have to abandon further appeals, but that won’t make the issue of draft registration go away.

Today’s decision by the 5th Circuit panel does nothing to undermine the logic of the District Court’s ruling that requiring only men and not women to register for the draft is unconstitutional. Eventually — whether through a petition for certiorari in NCFM v. SSS, at a later stage in Kyle-LaBell v. SSS (still pending in the District Court with new lawyers for the plaintiff and a new judge assigned after Den Hollander’s attack on Judge Salas’ family) or in some future case, this issue is almost certain to reach the Supreme Court. When it does, it is highly likely that Rostker v. Goldberg will be reversed and the current registration requirement for men will be nullified by court order.

Today’s decision postpones — perhaps for two or three years, maybe longer if another case has to work its way up through the courts — the urgency for Congress to decide whether to end draft registration or expand it to women. But the pressure is still on, if Congress doesn’t want draft registration ended (awkwardly) by the courts.

It remains as important as ever for those who oppose the draft and draft registration to continue to educate, agitate, and organize against the draft and draft registration, and to tell Congress to end draft registration once and for all. Inform yourself about the issue and what’s happening. Share information with your friends. Organize a discussion with your friends, or in your school or organization. Think about what you would do if you, or young women you know, were ordered to sign up for a possible draft — as young men are today.

Bills to either end registration (H.R. 5492) or expand it to women (H.R. 6415, which incorporates all of the recommendations of the National Commission on Military, National, and Public Service) are pending in the House of Representatives, but appear unlikely to be considered in this Congressional session. Similar proposals were put forward last month as amendments to the Fiscal Year 2021 National Defense Authorization Act (NDAA), but none of them made it to a floor vote in either the House or Senate.

I don’t expect any further consideration of this question in Congress before the elections. But it probably will be taken up next year (2021), either through standalone bills like this session’s H.R. 5492 and H.R. 6415, or as part of the Fiscal Year 2022 NDAA.

During markup last month of the FY 2021 NDAA in the House Armed Service Committee, Rep. Jackie Speier (D-San Mateo, CA), chair of the HASC Subcommittee on Military Personnel, said that she plans to hold subcommittee hearings on women and draft registration “within the next year”. That almost certainly means after the November 2020 elections, and most likely after the new Congress convenes in 2021. Rep. Speier has a safe Democratic Party seat, and clearly expects to be re-elected and to retain her subcommittee chairmanship as long as the Democrats retain control of the House of Representatives.

In 2016, the last time this issue was debated in Congress, Rep. Speier was one of the leading chearleaders for expanding draft registration to women (despite representing a seemingly anti-war and anti-draft district). I don’t expect her views to have changed. As subcommittee chair, however, her responsibility in organizing hearings is to ensure that both sides are heard. That means that any hearings on proposals to expand draft registration to women should also consider, and should include witnesses in support of, proposals to end draft registration entirely.

Opponents of the draft and draft registration should urge their Representative and Senators to support H.R. 5492 or a similar bill in the Senate. They should also contact Rep. Speier and urge her to hold full and fair hearings on draft registration that include H.R. 5492 or similar bills next year to end draft registration, and anti-draft and anti-war witnesses who support ending draft registration entirely.

Edward Hasbrouck maintains the Resisters.info website and was one of the expert witnesses invited to testify before the National Commission on Military, National, and Public Service. Reprinted with permission from Edward Hasbrouck’s website.