969 F.3d 546 (5th Cir. 2020), 19-20272, National Coalition For Men v. Selective Service System

Docket Nº:19-20272
Citation:969 F.3d 546
Opinion Judge:Per Curiam.
Party Name:NATIONAL COALITION FOR MEN; James Lesmeister, individually and on behalf of others similarly situated; Anthony Davis, Plaintiffs-Appellees, v. SELECTIVE SERVICE SYSTEM; Donald Benton, as Director of Selective Service System, Defendants-Appellants.
Attorney:Marc Etienne Angelucci, Attorney, Crestline, CA, for Plaintiffs-Appellees. Benjamin M. Shultz, Mark Bernard Stern, Esq., U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Michael J. Gerardi, U.S. Department of Justice, Washington, DC, Claire McCusker Murray, U.S. Depa...
Judge Panel:Before Wiener, Stewart, and Willett, Circuit Judges.
Case Date:August 13, 2020
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 546

969 F.3d 546 (5th Cir. 2020)

NATIONAL COALITION FOR MEN; James Lesmeister, individually and on behalf of others similarly situated; Anthony Davis, Plaintiffs-Appellees,

v.

SELECTIVE SERVICE SYSTEM; Donald Benton, as Director of Selective Service System, Defendants-Appellants.

No. 19-20272

United States Court of Appeals, Fifth Circuit

August 13, 2020

Page 547

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:16-CV-3362

Marc Etienne Angelucci, Attorney, Crestline, CA, for Plaintiffs-Appellees.

Benjamin M. Shultz, Mark Bernard Stern, Esq., U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, Michael J. Gerardi, U.S. Department of Justice, Washington, DC, Claire McCusker Murray, U.S. Department of Justice, Office of the Solicitor General, Washington, DC, for Defendants-Appellants.

Lawrence John Joseph, Washington, DC, for Amicus Curiae Eagle Forum Education and Legal Defense Fund.

Andre Segura, American Civil Liberties Union of Texas, Houston, TX, Amici American Civil Liberties Union Foundation of Texas, American Civil Liberties Union, 9to5, National Association of Working Women, A Better Balance, Gender Justice, KWH Law Center for Social Justice and Change, National Organization for Women Foundation, National Women's Law Center, Women's Law Center of Maryland, Women's Law Project.

Before Wiener, Stewart, and Willett, Circuit Judges.

Per Curiam.

Plaintiffs-Appellees James Lesmeister, Anthony Davis, and the National Coalition for Men sued Defendant-Appellants the Selective Service System and its director (collectively, "the Government") 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, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981), and only the Supreme Court may revise its precedent, we REVERSE.

I. BACKGROUND

The Military Selective Service Act (the "Act") requires essentially all male citizens and immigrants between the ages of eighteen and twenty-six to register with the Selective Service System, a federal agency, to facilitate their conscription in the event of a military draft. 50 U.S.C. § § 3802(a), 3809.

Page 548

Men who fail to register or otherwise comply with the Act and its implementing regulations may be fined, imprisoned, and/or denied federal benefits. Id. § § 3328, 3811(a), 3811(f). The Act does not require women to register. See id. § 3802(a).

In 1980, President Carter recommended to Congress that the Act be extended to cover women. See Rostker, 453 U.S. at 60, 101 S.Ct. 2646 (citing House Committee on Armed Services, Presidential Recommendations for Selective Service Reform— A Report to Congress Prepared Pursuant to Pub. L. 96-107, 96th Cong., 2d Sess., 20-23 (Comm. Print No. 19, 1980), App. 57-61). Congress declined after "consider[ing] the question at great length" with "extensive testimony and evidence." Id. at 61, 72, 101 S.Ct. 2646. In 1981, the Supreme Court held in Rostker v. Goldberg that male-only registration did not violate the Due Process Clause of the Fifth Amendment. Id. at 78-79, 101 S.Ct. 2646. The court based its reasoning on the fact that women were then barred from serving in combat and deferred to Congress's considered judgment about how to run the military. See id. at 76-77, 101 S.Ct. 2646.

Since then, the military has gradually integrated women into combat roles. In the early 1990s, Congress repealed the statutory bans on women serving on combat aircraft and ships. Pub. L. No. 103-160, § 541, 107 Stat. 1547, 1659 (1993), repealing 10 U.S.C. § 6015 (1988) (ships), Pub. L. No. 102-190, § 531, 105 Stat. 1290, 1365 (1991) (aircraft). In 2013, the Department of Defense ("DoD") announced its intention to open all remaining combat positions to women, the last of which it opened in 2016.

Congress again considered male-only registration in the context of the 2017 National Defense Authorization Act. The Senate version of the bill would have required women to register, S. 2943, 114th Cong. § 591 (as passed by Senate, June 21, 2016), but the final law instead created a commission to study the military Selective Service process to determine, among other questions, whether the process was needed at all and, if so, whether to conduct it "regardless of sex," National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § § 551, 555, 130 Stat. 2000, 2130, 2135 (2016). The commission completed its report in March 2020. National Commission on Military, National, and Public Service, Inspired to Serve (2020), https://inspire2serve.gov/sites/default/files/final-report/Final Report.pdf. The 2017 National Defense Authorization Act also directed the Secretary of Defense to issue a report addressing, inter alia, the benefits of the Selective Service...

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