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Girl Sues Draft for Only Registering Males by Ilya Somin

A recent lawsuit filed by a teenage girl in New Jersey (in conjunction with her mother) challenges the constitutionality of male-only draft registration, arguing that it violates the Constitution because it discriminates on the basis of sex [h/t: Elie Mystal of Above the Law]:

A New Jersey teenage girl has brought a federal class action against the Selective Service System, claiming its refusal to consider women for the draft is discriminatory.

“With both males and females available for such roles today, the two sexes are now similarly situated for draft registration purposes and there is no legitimate reason for the government to discriminate against the female class, so equal protection applies,” the complaint states. “Further, with both males and females available for such combat roles, there is no reasonable basis for infringing the associational interests of the female class by preventing them from registering.”

Noting that she will turn 18 this year, E.K.L., as she is named in the complaint, says she attempted to register for the draft on the website of the Selective Service by filling out the online form.

Once she clicked “female” during the online registration process, however, the website prevented her from registering….

E.K.L. and her mother call it undisputed that the Military Selective Service Act creates a sex-based difference.

Banning women from the pool of potential recruits is not rational given the role females currently play within the military, according to the complaint.

“If the two sexes can fight and die together, they can register together; if not, then no one should have to register,” the complaint states.

More information about the lawsuit is available in this article.

predicted that such a case would arise back in early 2013, when the Pentagon made women eligible to serve in nearly all combat roles (though I expected it to be brought by men forced to register for select service, rather than by women excluded from doing so).

The Supreme Court previously upheld the constitutionality of male-only draft registration in the 1981 case of Rostker v. Goldberg. However, as I also pointed out in that post, that ruling was partly based on the theory that women would not be as valuable draftees as men in an era when the armed forces excluded women from most combat positions.

Obviously, that logic is no longer valid. I also noted other reasons why the Court might overrule or at least severely limit Rostker if the issue came before it today:

Lower courts applying Rostker could therefore still conclude that male-only draft registration is constitutional, though Rostker is ambiguous enough on the amount of deference due [to federal government] that the issue is not a slam dunk.

If the issue gets to the Supreme Court however, I’m far from certain that Rostker wouldn’t be overruled or severely limited. As compared with 1981, the idea of women serving in combat is far more widely accepted by both elite and public opinion. And sex discrimination in draft registration is likely to seem like an outdated relic of the days when women were barred from numerous positions in the military.

If the Pentagon sticks to its new policy on women in combat, I think it’s likely that some male plaintiff will bring a new challenge to the Selective Service registration system, and that plaintiff will have a good chance of succeeding. Like most other constitutional law scholars, I think that Rostker was a dubious decision, and would not shed many tears if it were overruled.

For reasons outlined by Steven Calabresi and Julia Rickert, there is also a good originalist case for courts taking a strong line against sex discriminatory laws.

I would add that, since 1981, the Supreme Court has taken a tougher line against sex-discriminatory laws and policies. Most notably, it invalidated the exclusion of women from the Virginia Military Institute in the 1996 case of United States v. Virginia. The exclusion of women from a military college is not exactly the same as their exclusion from draft registration. But the two situations have obvious similarities.

There is a chance that this case will end up being thrown out on procedural grounds. A court could potentially rule that women exempt from draft registration don’t have standing to sue because they don’t actually suffer any harm as a result (draft registration is usually considered a burden, not a benefit).

This is one of the reasons why I thought a case would be more likely to be brought by men subject to draft registration than by women exempt from it.

Also, a court might deny the plaintiff’s bid to certify the case as a class action on behalf other similarly situated women. But if the case does go forward, there is a real chance it will ultimately result in the invalidation of male-only draft registration.

To avoid misunderstanding, I should emphasize that I do not support either drafting women or forcing them to register for a possible future draft. But I also oppose drafting men. Conscription is both a severe infringement on individual liberty, and tends to reduce the quality of the military relative to an all volunteer armed forces.

Ultimately, the best way to avoid conscripting women is to not have conscription – or draft registration – at all. By taking that step, we could simultaneously reduce the likelihood that the draft will be reimposed in the future and eliminate one of the last bastions of open sex discrimination in government policy.

In my view, a decision striking down male-only draft registration is more likely to lead to the abolition of draft registration altogether than to its extension to women.

This post originally appeared at the Volokh Conspiracy. 

Ilya Somin

Ilya Somin is Professor of Law at George Mason University School of Law. He blogs at the Volokh Conspiracy.

Oppression of Christians in U.S. Military is Triggering their Exodus

America has a Judeo/Christian ethos; 90% of Americans believe in God and 50% of them go to church and synagogue every week.  Christian members of the U.S. military are wondering long and hard about joining and/or making the U.S. Armed Forces a career. This concern by Christians to possibly avoid a U.S. Armed Forces that oppresses Christians appears to fit in with Obama’s Social Experiment On Diversity, in order to minimize Christian influence in the U.S. military.  The Social Experiment On Diversity that has been changing the make-up of the US Armed Forces is seriously eroding unit cohesiveness, unit morale, and  the “Combat Effectiveness“ of the U.S. military.

Chaplains are having their sermons and even the places where they are allowed to pray controlled and censored to be sure their statements are “Politically Correct” and in keeping with the what the Obama civilian appointees in DOD want them to say. Chaplains have been prevented from reading letters from their Cardinals in the pulpit to their parishioners. Chaplains have been prevented from giving bibles to patients in their hospital rooms. Catholic Chaplains who don’t believe in the use of birth control pills and abortion are prevented from preaching their religious beliefs in the pulpit. Army Ranger Chaplain Joseph Lawton was punished and served with a “Letter of Concern” for referring to solace and comfort he receives in his darkest moments by reading the Psalms of King David in the Old Testament of the Bible, while he was conducting a suicide prevention seminar for Combat Veterans suffering from PTSD.

The Defense in Marriage Act, a Federal Law, has been violated and disobeyed by Obama, and Holder without repealing it. Chaplains who support that Federal Law because of their religious beliefs have been discriminated against. Obama’s civilian DOD appointees have been intolerant toward Chaplains who do not believe in same sex marriage, supposedly in the defense of tolerance, to make them comply, which is not only hypocritical, but is bigoted. So if a Chaplain’s well held religious beliefs don’t allow him to support same sex marriage, he is threatened with career ending punishment which would result in his failure to be promoted, and/or would result in his removal from the U.S. Armed Forces. That treatment of Chaplains and Christians who agree with their Chaplains beliefs have been discriminated against and oppressive by the civilian appointees of the Obama administration at DOD.

Military personnel are prevented from having bibles at their desks in their work place, and military base commanders have been instructed not to allow bibles to be placed in base hotel rooms.

Open homosexuality in the U.S. Armed Forces has been approved by Obama’s Executive Orders, in a major “CHANGE” to General George Washington’s 238 year old U.S. Military Regulations. Last year because of the “CHANGE” of General George Washington’s Military Regulations, the U.S. Armed Forces authorized the recruiting of a large influx of gay males and women to join the U.S. military for the first time in U.S. history.  Last year 10,400 straight members of the US Armed Forces were sexually assaulted in their barracks and aboard their ships. The Navy has had straight female enlisted women sexually assaulted in their barracks and aboard their ships by lesbian crew members; and nearly 9, 000 female members of the US Armed Forces were sexually assaulted last year.

Gay Rights Political Events and gatherings are now being held on U.S. Military bases and in the Pentagon in violation of U.S. Military Regulations which prohibit political events of any kind. U.S. Military Color guards and military personnel in uniform are now being ordered to march in Gay Rights Parades (a political event) in violation of U.S. Military Regulations, while at the same time, members of the U.S. Armed Forces have been prevented from attending Christian events in their uniforms.

In 2014, at the Iron Mountain VA Hospital in Wisconsin, Chaplain Bob Mueller, relayed an unsettling experience he experienced in a conversation he had with one of Obama’s civilian appointee in the Veterans Administration, when he said “a couple of months ago, an order came down from Washington, D.C. to all Chaplains in VA Hospitals across the nation, ordering them to cover all icons associated with Christianity in VA Hospitals, like photos of Christ, crosses, and stained glass windows, because there are Christian symbols in stained glass.” Chaplain Mueller was told to “stop talking about Jesus, and to stop reading the scripture out loud.”  He said that the Obama administration has issued the same orders “to cover all things associated with Christianity” to all VA Chapels across the country.”  Click here to read Chaplain Mueller’s report.

The Flag and General Officer, who have always practiced and supported Judeo/Christian ethics, who opposed the hollowing out of the U.S. Armed Forces, and policies that degraded the “Combat Effectiveness” of the U.S. military by the occupant in the Oval Office, have been systematically eliminated over the last 6 years. A total of 195 Flag, General, and Senior Military Officers, who disagreed with Obama’s “Politically Correct” destructive military policies, and his executive Order that changed the U.S. Military into first major military force in the world that openly gay, a new and destructive policy that has negatively affected unit cohesiveness, the morale, and the “Combat Effectiveness” of the U.S. Armed Forces, have been purged by General Dempsey—those that remain have been conditioned not to defend Christianity.  Those 195 purged Senior Officers would have opposed the on-going attack on Christians in the U.S. Armed Forces, but they are no longer there to defend the Chaplains and the enlisted Christian personnel.  Senior enlisted military personnel who also practiced and supported Judeo/Christian ethics, and disagreed with an openly gay military, tried to utilized their right to complain thru the chain of command, and to express their concerns about the “Social Experiment on Diversity”, have also been purged, and in some cases have been court martialed and dishonorably discharged.

Although the Bill of Rights and the U.S. Constitution guarantees Freedom of Religion, Christian members of the U.S. Armed Forces have had their religious rights systematically violated and oppressed, as previously discussed above and in the below listed article.  The suppression of Christianity in the U.S. Armed Forces is triggering an exodus from the U.S. military of many Christians who wanted to make the U.S. military a career when they joined.  After their first tour of duty, while witnessing how Chaplains and their Christian religious beliefs were oppressed, they have turned against making the U.S. Armed Forces a career.  The elimination of thousands of Christian personnel from the U.S. Armed Forces with their well held religious beliefs and ethics in the ranks, and having them replaced will personnel with a different set of beliefs in keeping with Obama’s beliefs, will change the nature of the U.S. Armed Forces.


WND RADIO

CRACKDOWN ON CHRISTIANS TRIGGERS EXODUS FROM MILITARY

‘They’re starting to wonder, is this going to be a place where I’m welcomed?’

GREG COROMBOS

Greg Corombos is news director for Radio America.

A leading defender of Christians in the military says the crackdown on the free religious expression of Christians in uniform is increasing despite Pentagon assurances to the contrary, leading active-duty personnel to re-evaluate their careers and young Americans and their parents to reconsider service at all.

Recent discipline for military chaplains dispensing biblical counsel have made national headlines, but a recent piece in the Washington Times suggests enlistment numbers are in danger of dropping as well.

Liberty Institute represents chaplains in two high-profile cases as well as several other personnel reprimanded for their free expression of Christian beliefs. Senior counsel Michael Berry said the American people are paying attention and getting increasingly worried about what’s happening in the military.

“A great deal of Americans of faith, which is still a majority of our country, are looking at the environment and climate within our federal government and military more specifically and seeing case after case, report after report,” Berry said in an interview with WND and Radio America.

He said the growing number of stories is causing committed Christians to ask some uncomfortable questions.

“They’re starting to wonder, ‘Is this going to be a place where I’m welcomed? Is this going to be a place where I’m tolerated? Am I going to be required to keep my faith in the closet, so to speak?’ Or are they going to be allowed, which has always been the practice in our country up until this point, to freely exercise their religion in accordance with their sincerely held beliefs as the Constitution allows?” asked Berry, a military vet who made his own difficult decision to leave the armed forces as he saw religious liberties eroding.

“I was on active duty, and I began to see the writing on the wall,” he said. “I realized this is not the military I grew up in. This is not the military that I was raised to believe in and to support. It’s changing, and I realized it was time for me to make a move.”

And Berry is not the only one thinking long and hard about military service as the right career path.

“I’ve had a lot of mothers and fathers ask me. They say, ‘Mike, I served and my son or daughter wants to follow in my footsteps. But, as proud as I am of my military service, I’m not sure I want my son or daughter to be serving in our military anymore, given what’s going on,’” Berry said. “That’s very scary for our country if that kind of conversation and dialogue is now happening.”

It’s difficult to get solid numbers on the impact religious freedom restrictions are having on recruiting and retention. Berry said the military almost always keep mum about drops in recruiting and retention and it never breaks down the reasons for the declines.

“It doesn’t behoove the military to report that they’re having problems with retention,” he said. “A group like a chaplain’s corps is not going to say, ‘We’re having a hard time attracting new chaplains’ because that doesn’t present them in a very favorable light.”

Read more.

America’s Military Power in a Steep Decline

“Eliminating the terrorists of today with force will not guarantee protection from the terrorists of tomorrow. We have to transform the environments that give birth to these movements…It may be training young people so they can get jobs…it may be working to eliminate corruption and promote the rule of law…”

The Obama administration proposal that a jobs program be created for the militants in the Middle East was met with appropriate derision because what the jihadists need is killing. That’s what they are doing to Christians, Jews and others in the Middle East and elsewhere.

The quote above is by John Kerry, the Secretary of State, and to be fair, his February 18 Wall Street Journal commentary began by saying “The rise of violent extremism represents the pre-eminent challenge of the young 21st Century. Military force is a rational and often necessary response to the wanton slaughters of children, mass kidnappings of schoolgirls, and beheading of innocents. But military force along won’t achieve victory.”

Kerry is wrong. History as recent as the mid-20th century is proof enough that the military defeat of Nazi Germany and the Empire of Japan was the only thing that ended the threat they represented. He was also wrong when he told a congressional committee that the world is a safer place these days when it is clear to anyone it is not.

We are being led by people who live in some alternative universe where pixie dust and unicorns exist.

The real question the Obama administration has to answer is why, since he took office in 2009, has he been systematically reducing the military power of the United States? By pulling our troops out of Iraq he created a vacuum filled by the Islamic State (ISIS) that now threatens the entire Middle East and parts of North Africa. He has since curtailed plans to pull most of our troops out of Afghanistan.

soldiers in dust stormOut of sight of Americans, however, the key personnel, the leaders on which our military depends, have been subject to a purge. General Paul Vallely (Ret) has warned that “Since Barack Obama has been in the White House, high ranking military officers have been removed from their positions at a rate that is absolutely unprecedented,” adding that “He’s intentionally weakening and gutting our military and reducing us as a superpower, and anyone in the ranks who disagrees or speaks out is being purged.”

In late February, 84 former U.S. government officials, retired U.S. military leaders, and national security experts sent an open letter to the House and Senate leadership asking them to work together to end the harm that the Budget Control Act and sequestration is inflicting on our Armed Forces.

They deemed the trillion dollars of required defense spending cuts “a grave and growing danger to our national security…as threats intensify across the globe.” The cuts “are undermining the readiness of our forces today and investment in the critical capabilities they will need tomorrow.”

“In the last three years, the Army’s strength has been cut by nearly 100,000 soldiers. The Navy’s contingency response force is at one-third the level of what it should be. Less than half of the Air Force’s combat squadrons are fully ready. Approximately half of the Marine Corps non-deployed units lack sufficient personnel, equipment, and training.”

These were facts set forth in the National Defense Panel’s July 2014 report. It warned that if sequestration takes effect in fiscal year 2016, the U.S. would be facing an “immediate readiness crisis.”

putin 2This lack of readiness was the subject of a Wall Street Journal commentary, “Europe’s Defense Wanes as the Putin Threat Grows” by Ian Birrell, so it is not just the United States that lacks sufficient troops and weapons in the event of a war. Birrell noted that “With fewer than 100,000 full-time troops, Great Britain now has a smaller army than during the mid-19th-century Crimean War.” Other members of NATO have cut their defense budgets in recent years. He warned that “As we fight this new Cold War, Western leaders need to relearn the old lessons of crisis management and deterrence that defeated Mr. Putin’s Soviet predecessors—and relearn them quickly.”

Recall that Secretary Kerry has gone on record saying that “climate change” is the greatest threat the U.S. and the world faces. Little wonder that Chuck Hegel resigned as the former Secretary of Defense given the pressure he was under from a White House indifferent to the real problems and threats the U.S. faces.

In 2014 the Pentagon released a “Climate Change Adaptation Forecast” and any defense funds diverted to this plan were just that much less than needed for our troops in the field and the real needs of the U.S. military. Are they supposed to be fighting melting ice bergs or staying ready for potential military threats from China or Russia?

An example of the idiotic political correctness, scarce Pentagon resources are being diverted to a plan to generate 50% of the Navy’s energy needs from “alternative sources” by 2020, including $3.5 billion for biofuels. You cannot fight a global war if the Navy cannot swiftly and easily acquire oil to run its ships that are not nuclear-powered and fly its aircraft.

At the same time, the U.S. has been reducing its stockpile of nuclear arms. The State Department’s Rose Gottemoeller, under-secretary for arms control and international security, recently told a group “The U.S. commitment to achieving the peace and security of a world without nuclear weapons is unassailable.” She noted that the nation’s stockpile of active weapons is down 85% from maximum cold war levels, falling to 4,804 in 2013 from a high of 31,255, adding that “We still have more work to do.”

This completely ignores nuclear nations like North Korea who have bad intentions toward the U.S. and their neighbors and it runs completely contrary to the U.S. negotiations with Iran that would permit it to become a nuclear armed nation.

This is worse than diplomatic schizophrenia; it is a plan for national suicide.

Marine Corps Lt. Gen. Vincent Stewart, director of the Defense Intelligence Agency, recently told Congress that Russia and China have placed their highest priority on building up and maintaining strategic nuclear forces.

If you want to know what is wrong about the entire approach to our nation’s military needs, consider that since 2009 when Obama took office, the Pentagon’s civilian workforce has grown about 7% to almost 750,000, while active-duty military personnel have been cut by approximately 8%.

At the same time, dozens of military-equipment and weapons programs have been canceled, including a new Navy cruiser, a new search-and-rescue helicopter, the F-22 first-generation fighter, the C-17 transport aircraft, missile defense and the Marine Corps’ Expeditionary Fighting Vehicle.

We are not prepared to fight a war and now you know why.

© Alan Caruba, 2015