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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NATIONAL COALITION FOR MEN, et al.,
Plaintiffs,
CIVIL ACTION 

V.

SELECTIVE SERVICE SYSTEM, et al.,



Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is: a motion for summary judgment filed by plaintiffs National
Coalition for Men Anthony Davis, and James Lesmeister (?Plaintiffs?) (Dkt. 73); and
(2) a cross-motion for summary judgment and motion to stay ?led by defendants Selective Service
System and Lawrence Romo (collectively, ?Defendants?) (Dkt. 80). Plaintiffs responded
to Defendants? cross-motion. Dkt. 81. Having considered the motions, response, evidence in the
record, and applicable law, the court is of the opinion that Plaintiffs? motion for summary judgment
(Dkt. 73) should be GRANTED and Defendants? motion for stay and summary judgment (Dkt. 80)
should be DENIED.

I. BACKGROUND

This case balances on the tension between the constitutionally enshrined power of Congress
to raise armies and the constitutional mandate that no person be denied the equal protection of the
laws. US. Const. art. I, 8; US. Const. amend. Bolling v. Sharpe, 347 US. 497, 74 S. Ct.
693 (1954).

The Military Selective Service Act requires males?but not females?to register

for the draft. The MSSA provides that ?every male citizen of the United States, and every other male

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person residing in the United States . . . between the ages of eighteen and twenty-six,? must register
with 50 U.S.C. 3802(a). After registering, men have a continuing obligation to update 
with any changes in their address or status. 3813. Failure to comply with the MSSA can result in
up to $10,000 in ?nes and ?ve years of imprisonment. 3811(a). Males are also subject to other
penalties for failing to register, including denial of federal student loans. 3811(f).

Plaintiffs challenge the MS SA on equal protection grounds, arguing that the MS male-
only registration requirement violates the Fifth Amendment Due Process Clause. Dkt. 60 at 12.
Plaintiffs Lesmeister and Davis are males subject to the draft requirements.1 Dkt. 73-2 at 1?2. Both
have registered with the in compliance with the MSSA. Id. NCFM is a non-pro?t, 501(c)(3)
educational and civil rights corporation. Id. at 3. Some of members, including Davis, are
males subject to the draft requirements who have already registered or will have to register under the
MSSA. Id. at 3?4.

In 2013, NCFM and Lesmeister ?led suit against Defendants in the Central District of
California. Dkt. 1. Initially, Judge Dale S. Fischer, the Central District of California judge,
dismissed the case as not ripe for review. Dkt. 20. The Ninth Circuit reversed and remanded,
holding that the plaintiffs? claims were ?de?nite and concrete, not hypothetical or abstract, and so
ripe for adjudication.? Nat ?1 Coal. for Men v. Selective Serv. Sys., 640 F. App?X 664, 665 (9th Cir.
2016) (citations and quotations omitted). On remand, Judge Fischer granted Defendants? motion to
dismiss NCFM without prejudice because the organization lacked associational standing. Dkt. 44
at 4. Further, the court determined that venue was not proper in the Central District of California

and transferred the case to the Southern District of Texas, where Lesmeister resides. Id. at 5.

 

1Plaintiffs request judicial notice of certain facts in this case. Dkt. 73-2. To the extent
Plaintiffs request judicial notice of facts that are not in dispute, the court grants this request.

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Upon transfer, Lesmeister amended his complaint to name NCFM and Davis as plaintiffs.
Dkt. 60. This court subsequently determined that all three plaintiffs have standing. Dkt. 59. Both
Plaintiffs and Defendants now move for summary judgment, arguing that current equal protection
jurisprudence entitles them to judgment as a matter of law.2

II. ANALYSIS

A. Motion to Stay

?The proponent of a stay bears the burden of establishing its need.? Clinton v. Jones, 520
US. 681, 708, 117 S. Ct. 1636 (1997). In their pending motion, Defendants ?rst contend that the
court should stay the current proceedings. Dkt. 80 at 15?21. Defendants argue that the case is not
ripe for review because Congress is currently considering whether to add women to the draft. Id.
Defendants also argue that, under separation-of?power principles, the court should postpone
resolution of the case during congressional debate on the issue. Id. Finally, Defendants urge the
court to stay the case using its inherent case-management power because the balance of hardships
weighs in Defendants? favor. Id.

1. Ripeness

The justiciability doctrine of ripeness prevents courts, ?through avoidance of premature
adjudication, from entangling themselves in abstract agreements.? Choice Inc. of ex. v. Greenstez'n,
691 F.3d 710, 715 (5th Cir. 2012) (quoting Abbott Labs. v. Gardner, 387 US. 136, 149, 87 S. Ct.
1507 (1967), abrogated on other grounds by Califano v. Sanders, 430 US. 99, 105 (1977)). A court

must dismiss for lack of ripeness when the case is ?abstract or hypothetical.? Id. (quoting New

 

2A court shall grant summary judgment when a ?movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.? Fed. R.
Civ. P. 5 Here, both sides have moved for summary judgment, so the parties agree that there
are no material fact issues to resolve. Dkt. 73; Dkt. 80.

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Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583, 586 (5th Cir. 1987)). ?Ripeness
?requir[es] us to evaluate both the ?tness of the issues for judicial decision and the hardship to the
parties of withholding court consideration.?? Texas 12. United States, 523 US. 296, 300?01,
118 S. Ct. 1257 (1998) (quoting Abbott Labs, 387 US. at 149). case is generally ripe if any
remaining questions are purely legal ones; conversely, a case is not ripe if further factual
development is required.? Choice Inc. of ex., 691 F.3d at 715 (quoting New Orleans Pub. Serv.,
Inc, 833 F.2d at 586).

Defendants argue that the case is not currently fit for judicial decision because Congress
recently established the National Commission on Military, National, and Public Service (?the
Commission?) to consider Whether Congress should modify or abolish the current draft registration
requirements. Dkt. 80 at 17; National Defense Authorization Act for Fiscal Year 2017, Pub. L. No.
114-328, 551, 130 Stat. 2000, 2130 (2016). Although the Ninth Circuit previously held that the
case was ripe despite ongoing congressional debate, Defendants contend that the recently created
Commission now renders Plaintiffs? claims unripe. Id. at 19. Defendants request that the court stay
proceedings until the Commission has issued its report and Congress has had the opportunity to act
on the Commission?s recommendations. Id. at 21.

However, the existence of the Commission does not affect the ripeness of Plaintiffs? claims.
The question of whether the MSSA violates the Constitution is purely legal; no further factual
development is necessary for the court to decide the issue. Plaintiffs? claims are not ?abstract or
hypothetical.? Choice Inc. of ex., 691 F.3d at 715 (quoting New Orleans Pub. Serv., Inc., 833 F.2d
at 586)). While the Commission?s recommendations could affect the current proceedings, the
Commission is not set to release its ?nal report until 2020. Dkt. 86-1 at 4 (Commission interim

report). There is no guarantee that the Commission will recommend amending or abolishing the

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even if it does, Congress is not required to act on those recommendations. Congress
has been debating the male-only registration requirement since at least 1980 and has recently
considered and rejected a proposal to include women in the draft. Rostker, 453 US. at 60; Dkt. 80-3
at 11 (Letter to Armed Services Committee Chairs, Sept. 2016). It is Defendants? arguments?not
Plaintiffs? claims?that are too hypothetical for the court?s consideration.3

?However, even where an issue presents purely legal questions, the plaintiff must show some
hardship in order to establish ripeness.? Choice Inc. of ex., 691 F.3d at 715 (citing Cent. S. W.
Servs., Inc. v. EPA, 220 F.3d 683, 690 (5th Cir. 2000)) (quotations omitted). Here, Plaintiffs have
demonstrated that they are subject to the MS SA. Dkt. 73-2. members include individuals
who will have to register under the MSSA in the future and will be subject to ongoing requirements
to update their personal information. Id. Moreover, ?discrimination itself, by perpetuating ?archaic
and stereotypic notions? . . . can cause serious non-economic injuries to those persons who are
personally denied equal treatment solely because of their membership in a disfavored group.?
Heckler v. Mathews, 465 US. 728, 739?40, 104 S. Ct. 1387 (1984) (citations omitted). Thus,
Plaintiffs have shown ?some hardship? and the case is ripe.

2. Separation of Powers

Second, Defendants effectively argue that the court must grant a stay to give Congress proper
deference in the realm of military affairs and avoid Violating the separation of powers. Dkt. 80
at 1 1?13. Defendants cite Congress?s broad constitutional power to conduct military affairs and the

Supreme Court?s decision in Rostker v. Goldberg, 453 US. 57, 101 S. Ct. 2646 (1981). Dkt. 80 at

 

3Defendants also argue that deference to Congress is appropriate when pending legislation
may render a legal challenge moot, and that such deference applies here. Dkt. 80 at 19?20 (citing
Schlesinger 12. Ballard, 419 US. 498, 510 n. 13, 95 S. Ct. 572 (1975)). However, Defendants do not
cite any pending legislation that would add women to the draft.

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17?19. However, ?separation of powers does not mean that the branches ?ought to have no partial
agency in, or no controul over the acts of each other.?? Clinton, 520 U.S. at 703 (quoting The
Federalist No. 47, at 325?326 (James Madison) (J. Cooke ed., 1961) (emphasis in original)). Even
judicial review that ?signi?cantly burden[s] the time and attention? of another branch ?is not

9?

suf?cient to establish a violation of the Constitution. Id. The Supreme Court has repeatedly
af?rmed that ?concerns of national security . . . do not warrant abdication of the judicial role.?
Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010).

Rostker itself expressly acknowledged that Congress does not receive ?blind deference in the
area of military affairs.? 453 U.S. at 67. Even though congressional power in this area is ?broad and
sweeping,? Congress may not ?exceed[] constitutional limitations on its power in enacting such
legislation.? Rumsfeld v. Forum for Acad. Inst. Rights, Inc., 547 U.S. 47, 58, 126 S. Ct. 1297
(2006) (citations and quotations omitted). As this court previously reasoned:

The court agrees with Defendants that Congress has broad power to
raise and regulate armies and navies. Rostker, 453 U.S. at 65. Thus,
?a healthy deference to legislative and executive judgments in the
area of military affairs? should be given by the court. Id. at 66.
Rostker thoroughly explained the reason to provide deference to
Congress when dealing with military affairs. See id. at 64?67. But
?[n]one of this is to say that Congress is free to disregard the
Constitution when it acts in the area of military affairs. In that area,
as any other, Congress remains subject to the limitations of the Due
Process Clause.? Id. at 67.

Dkt. 66 at 6?7 (denying Defendants? motion to dismiss for failure to state a claim). Rostker
explicitly requires Congress to comply with the Constitution in the area of military affairs, and
Plaintiffs allege that the MSSA violates the Constitution. Rostker, 453 U.S. at 67; Dkt. 60 at 12.

Additionally, as noted above, Congress has been debating the MS registration requirement for

decades with no definite end in sight. Even constitutionally mandated deference does not justify a

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complete and inde?nite stay when parties allege that the federal government is presently Violating
their constitutional rights.

3. Inherent Power

Finally, Defendants request that the court exercise its discretion to stay the case. This court
?has broad discretion to stay proceedings as an incident to its power to control its own docket.?
Clinton, 520 US. at 706. Even if the burdens on the government do not Violate separation-of?powers
principles, ?those burdens are appropriate matters for the District Court to evaluate in its
management of the case.? Id. at 707. ?[T]he power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the causes on its docket with economy of time
and effort for itself, for counsel, and for litigants.? Qualls v. EOG Res., Inc., No. H-18-666, 2018
WL 2317718, at *2 (SD. May 22, 2018) (Miller, J.) (alteration in original) (quoting Landis v.
N. Am. C0., 299 US. 248, 254, 57 S. Ct. 163 (1936)). The movant must ?make out a clear case of
hardship or inequity in being required to go forward.? Landis, 299 US. at 254.

Defendants contend that a court ruling at this time ?could disrupt or distract a process that
may ultimately render [the issue] moot? if the Commission recommends ?ending registration in its
entirety.? Dkt. 80 at 18; see also Dkt. 80 at 21 (?Alternatively, such a ruling could require the
Government to spend millions of dollars and expend significant resources and effort changing the
system of selective service?a considerable hardship?when Congress may wish to change the
system in a completely different manner following the Commission?s review?). However, if the
court stayed the case until Congress acted on the Commission?s recommendations, the case could
be stayed indefinitely. The Commission is under no obligation to recommend certain outcomes to

Congress, and Congress is under no obligation to follow or act on those recommendations. The fact

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and nature of future congressional action is highly speculative. Thus, the court?s time and effort is
likely best spent on the case at this stage, rather than at some inde?nite time in the future.
Moreover, present resolution of the case will not create such a hardship for Defendants that
the hardship justi?es a continuous and inde?nite violation of Plaintiffs? constitutional rights.
Congressional resolution of this issue, if it occurs, Will not necessarily be less burdensome for
Defendants than judicial resolution. Defendants have not made out a ?clear case of hardship or
inequity.? Landis, 299 US. at 254. Therefore, the court declines to use its inherent authority to stay

the case.

    

B. "in (1 Changing Opportunities for Women in the Military

On substance, Defendants ?rst argue that the Supreme Court?s holding in Rostker v.
Goldberg(1981), forecloses any challenge to gender discrimination in
the MS SA. Dkt. 80 at 21?22. However, as this court previously held in denying Defendants? motion
to dismiss, Rostker is factually distinguishable from the current case. Dkt. 66 (order denying

Defendants? motion to dismiss for failure to state a claim). The court again declines to resolve the

case on Rostker alone.

 

1. The Mini. pinion

In Rostker, the Supreme Court squarely addressed the question of Whether the male-only
registration requirement in the MSSA violated equal protection principles. 453 US. at 83. The
Court ?rst noted that judging the constitutionality of a statute passed by Congress is ?the gravest and
most delicate duty that this Court is called upon to perform.? Id. at 64 (quoting Blodgett v. Holden,

275 US. 142, 148, 48 S. Ct. 105 (1927)). Further, the case arose ?in the context of Congress?

authority over national defense and military affairs, and perhaps in no other area has the Court

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accorded Congress greater deference.? Id. at 64?65. Thus, the Rostker Court emphasized that it
owed great deference to Congress?s judgment in passing the MS SA because ?the Constitution itself
requires such deference to congressional choice.? Id. at 67.

The Court held that the MSSA was constitutional. Id. at 83. After considering the extensive
legislative history of the MSSA, the Court concluded that ?the decision to exempt women from
registration was not the accidental by?product of a traditional way of thinking about females.?
Id. at 74 (quotations omitted). Instead, the Court acknowledged that women were not eligible for
combat, but that the purpose of registration was to prepare for a draft of combat troops. Id. at 76?77.
The Court reasoned:

This is not a case of Congress arbitrarily choosing to burden one of
two similarly situated groups, such as would be the case with an all-
black or all-white, or an all?Catholic or all-Lutheran, or an all-
Republican or all-Democratic registration. Men and women, because
of the combat restrictions on women, are simply not similarly situated
for purposes of a draft or registration for a draft. Congress? decision
to authorize the registration of only men, therefore, does not violate
the Due Process Clause.

Id. at 78?79. Thus, the Court concluded that women?s ineligibility for combat ?fully
the male-only registration requirement. Id. at 79. ?The Constitution requires
that Congress treat similarly situated persons similarly, not that it engage in gestures of super?cial
equality.? Id. Because men and women were not similarly situated with respect to combat
eligibility, and therefore not similarly situated with respect to the draft, the Court held that the MS SA
did not violate equal protection principles. Id.

2. Factual Developments Since 5%

In the nearly four decades since Rostker, however, women?s opportunities in the military

have expanded dramatically. In 2013, the Department of Defense of?cially lifted the ban on women

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in combat. Dkt. 73-1 at 9. In 2015, the Department of Defense lifted all gender-based restrictions
on military service. Dkt. 73-1 at 12. Thus, women are now eligible for all military service roles,
including combat positions.

Therefore, although judicial deference . . . is at its apogee? when Congress legislates under
its authority to raise and support armies,? Rumsfeld, 547 US. at 58 (quoting Rostker, 453 US. at
70), the Rostker holding does not directly control here. The dispositive fact in Rostker?that women
were ineligible for combat?can no longer justify the gender-based discrimination.4 
legislative act contrary to the constitution is not law,? and it is the ?province and duty of the judicial
department to say what the law is.? Marbury 12. Madison, 1 Cranch 137, 177, 5 US. 137 (1803).
The court will consider the constitutionality of the MSSA anew.

C. The MSSA and Equal Protection

1. Standard of Review

Laws differentiating on the basis of gender ?attract heightened review under the
Constitution?s equal protection guarantee.? Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689
(2017) (citing Califano v. WestcottCt. 2655 (1979)). Typically, ?[t]he
defender of legislation that differentiates on the basis of gender must show ?at least that the
[challenged] classi?cation serves important governmental objectives and that the discriminatory

means employed are substantially related to the achievement of those objectives.?? Id. at 1690

 

4Defendants argue that under Rodriguez de Quijas v. Shearson/American Express, Inc. 490
US. 477, 484, 109 S. Ct. 1917 (1989), this court is bound by Supreme Court precedent regardless
of a change in factual circumstances. Dkt. 80 at 21?22. However, Rodriguez de Quijas merely notes
that, in the face of two legally con?icting decisions, lower courts should follow the decision most
directly on point instead of attempting to overrule one of the con?icting decisions. 490 US. at 484.
Despite Rostker?s undeniable relevance to this case, the Rostker holding is not directly on point and
therefore does not mandate judgment in Defendants? favor.

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(quoting United States v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264 (1996)). Further, ?the
classi?cation must substantially serve an important governmental interest t0day??it is insuf?cient
that the law served an important interest in the past. Id. (citing Obergefell v. Hodges, 135 S. Ct.
2584, 2603 (2015)) (emphasis in original).

Although the MSSA discriminates on the basis of gender, Defendants argue that a lower,
rational-basis-like standard of review applies. Defendants contend that ?the Court?s departures?in
Rostker and other military cases?from core aspects of strict or intermediate scrutiny demonstrates
that its approach most closely resembles rational-basis review.? Dkt. 80 at 23. Defendants
emphasize the Rostker Court?s highly deferential approach to reviewing the MS SA and argue that
recent precedent, including Trump v. Hawaii, 138 S. Ct. 2392 (2018), af?rms this lower standard
of review in the military context. Id. at 24.

However, Defendants? reliance on Trump is misplaced. The Trump decision concerned
judicial review of the President?s power over immigration. 138 S. Ct. at 2420. While the Trump
Court acknowledged that a deferential standard of review applied ?across different contexts and
constitutional claims,? the Court?s entire discussion centered on different claims within the realm
of immigration law. Id. at 2419. Certainly, there are signi?cant similarities between the Court?s
deference to Congress in military affairs and its deference to the President in immigration affairs.
However, the Trump decision is tangential, at best, to the issue currently before the court.

Instead, Rostker itself provides the applicable standard of review when Congress exercises
its constitutional power to raise and support armed forces. In Rostker, as here, the government
expressly argued that the Court should ?only determine if the distinction drawn between men and
women bears a rational relation to some legitimate Government purpose.? 453 US. at 69. However,

the Court expressly declined to adopt this position. Id. at 69?70. Rather, the Court relied on
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Schlesinger v. Ballard, 419 US. 498, 95 S. Ct. 572 (1975), in which the Court upheld naval
regulations creating different promotion requirements for female of?cers. Rostker, 453 US. at 71.
As the Court explained, ?[Schlesinger] did not purport to apply a different equal protection test
because of the military context, but did stress the deference due congressional choices among
alternatives in exercising the congressional authority to raise and support armies and make rules for
their governance.? Id. at 71.

The Court emphasized that the judiciary ?cannot ignore Congress? broad authority conferred
by the Constitution to raise and support armies when we are urged to declare unconstitutional its
studied choice of one alternative in preference to another for furthering that goal.? Id. at 71?72.
However, the Court went on to reason that ?the Government?s interest in raising and supporting
armies is an ?important governmental interest,?? and that ?[t]he exemption of women from
registration is . . . closely related to Congress? purpose in authorizing registration.? Id. at 70, 79
(quoting Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451 (1976)). The Rostker Court therefore
subjected the MS SA to a heightened level of scrutiny, even in light of the Court?s marked deference
to Congress?s ?studied choice? between alternatives. Id. at 72.

2. Analysis

Thus, the dispositive question here is whether the MS SA both serves important governmental
objectives and is substantially related to the achievement of those objectives. Morales-Santana, 137
S. Ct. at 1689. First, one could deny? that the governmental objective of raising and
supporting armies is an ?important governmental interest.? Rostker, 453 US. at 70. However,
Plaintiffs initially counter that registration, and the draft itself, will not necessarily be used to draft

combat troops in future wars. Dkt. 73 at 20?2 1. Plaintiffs contend that the court should analyze the

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MSSA with the understanding that registrants may be drafted into both combat and non-combat
roles, and that Congress?s important objective should be understood in that light. Id.

However, while future wars may require a draft of non-combat troops, Congress still
understands the draft, as it currently exists, to be for the ?mass mobilization of primarily combat
troops.? National Defense Authorization Act, Pub. L. No. 114-328, 552(b)(4), 130 Stat. at 2131.
This determination is well within Congress?s constitutional role of governing and maintaining
effective armed forces. See Rostker, 453 US. at 68. The court?s inquiry is thus restricted to Whether
the male-only registration requirement is substantially related to Congress?s important
objective of drafting and raising combat troops.

Next, Defendants must show that the male-only registration requirement is
?substantially related? to Congress?s objective. See Miss. Univ. for Women v. Hogan, 458 US. 718,
724, 102 S. Ct. 3331 (1982). ?The justi?cation must be genuine, not hypothesized or invented post
hoc in response to litigation. And it must not rely on overbroad generalizations about the different
talents, capacities, or preferences of males and females.? Virginia, 518 US. at 533; see also
Rostker, 453 US. at 67 (noting that the Court previously struck down gender-based classi?cations
that were based on ?overbroad generalizations?). the statutory objective is to exclude or
?protect? members of one gender because they are presumed to suffer from an inherent handicap or
to be innately inferior, the objective itself is illegitimate.? Mississippi Univ. for Women, 458 US.

at 724 (citing rontiero v. Richardson, 41 1 US. 677, 691, 93 S. Ct. 1764 (1973) (plurality opinion)).

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Defendants offer two potential justi?cations for male-only registration.5 First, Defendants
argue that female eligibility to serve in combat roles ?does not answer the question of whether
women should be conscripted into combat roles? because conscription could lead to ?potential
tradeoffs? for the military. Dkt. 80 at 27 (emphasis added). Construed liberally, Defendants appear
to be arguing that requiring women to register for the draft would affect female enlistment by
increasing the perception that women will be forced to serve in combat roles. Id. at 28; Dkt. 80-3
at 173.

However, this argument smacks of ?archaic and overbroad generalizations? about women?s
preferences. Schlesinger, 419 US. at 507?08; see also Virginia, 518 US. at 533; Rostker, 453 US.
at 67. At its core, Defendants? argument rests on the assumption that women are signi?cantly more
combat-averse than men. Defendants do not present any evidence to support their claim or otherwise
demonstrate that this assumption is anything other than an ?ancient canard[] about the proper role
of women.? Rostker, 453 US. at 86 (Marshall, ., dissenting) (quotations and citations omitted).

As the Court reasoned in Schlesinger:

 

5In 2016, a Senate-passed version of the National Defense Authorization Act 
would have required women to register for the draft. Dkt. 80-3 at 11 (Letter to Armed Services
Committee Chairs, Sept. 2016). The Senate Armed Services Committee acknowledged that ?the ban
of females serving in ground combat units has been lifted by the Department of Defense, and as such,
there is no further justi?cation to apply the selective service act to males only.? S. Rep. No. 114-
255, at 150?51 (2016). However, opposition to this change remained, and the ?nal version of the
NDAA instead created the Commission to explore a number of draft-related topics. National
Defense Authorization Act, Pub. L. No. 114-328, 552, 130 Stat. at 2131; see Dkt. 80?3 at 11
(Letter to Armed Services Committee Chairs). However, based on record before the court, Congress
generated very little documentation on why it ultimately declined to amend the MS SA. Defendants
only offer a 2016 letter from a group of senators formally requesting that the House remove the
provision adding women to the draft. Dkt. 80-3 at 11 (Letter to Armed Services Committee Chairs)
(?We should not hinder the brave men and women of our armed forces by entrapping them in
unnecessary cultural issues . . . The provision of the FY17 NDAA requiring women to register for
the Selective Service should be removed?). Defendants do not offer concerns about ?unnecessary
cultural issues? as a justi?cation for the continued discrimination. Thus, the court must
primarily rely on congressional records from previous debates on the MSSA.

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In both Reed and r0ntier0[,] the challenged classi?cations based on
sex were premised on overbroad generalizations . . . that men would
generally be better estate administrators than women . . . [and] that
female spouses of servicemen would normally be dependent on their
husbands, while male spouses of servicewomen would not. In
contrast, the different treatment of men and women naval
of?cers . . . re?ects, not archaic and overbroad generalizations, but,
instead, the demonstrable fact that male and female line of?cers in the
Navy are not similarly situated with respect to opportunities for
professional service.
419 US. at 507?08. It is not a ?demonstrable fact? that fewer women will enlist for fear of
being conscripted into combat. This justi?cation fails.
Moreover, this justi?cation appears to have been created for litigation. See Virginia, 518
US. at 533. Defendants have not produced any evidence that Congress actually looked to this
concern in declining to add women to the draft. Defendants? evidence establishes only that Congress
may have considered a similar issue in evaluating the Department of Defense?s decision to open
combat positions to women. See Dkt. 80-3 at 171?74. Thus, although the court must give
signi?cant deference to Congress?s judgment in military affairs, such deference is not implicated
here.
Second, Defendants argue that Congress preserved the male-only registration requirement
out of concern for the administrative burden of registering and drafting women for combat. Dkt. 80
at 28. Unlike Defendants? ?rst offered justi?cation, Congress considered this issue extensively in
debates over the MSSA. See S. Rep. No. 96?826, at 156?61 (1980); Rostker, 453 US. at 81. Thus,
the court?s deference to Congress?s ?studied choice? is potentially at its height. Rostker, 453 US.
at 72.

Typically, ?any statutory scheme which draws a sharp line between the sexes, solely for the

purpose of achieving administrative convenience, necessarily commands ?dissimilar treatment for

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men and women who are . . . similarly situated,? and therefore involves the ?Very kind of arbitrary
legislative choice forbidden by the rantiero, 411 US. at 691 (quoting Reed v.
ReedCt. 251 (1971)). However, even in light of this general rule, the Rostker
Court considered and deferred to Congress?s administrative concerns. See Rostker, 453 US. at
81?82; accord Schlesinger, 419 US. at 507?08. The Court distinguished past precedent by noting
that the previous classi?cations ?were based on overbroad generalizations? but that, in contrast,
Congress?s choice to retain the MSSA was based on ?judgments concerning military operations and
needs.? Id. at 67?68 (quotations omitted). Thus, Rostker af?rms that administrative concerns may
justify statutory gender classi?cations in service of Congress?s broad power over military affairs.

Congress cited several administrative concerns in its 1980 rejection of adding women to the
draft. The primary concern, again, centered around administrative dif?culties caused by the ban on
women in combat. S. Rep. No. 96-826, at 156?61; see also id. at 157 (?The policy precluding the
use of women in combat is, in the Committee?s view, the most important reason for not including
women in a registration system?). The Committee had also expressed concern that ?training would
be needlessly burdened by women recruits who could not be used in combat.? Rostker, 453 US. at
81 (quoting S. Rep. No. 96-226, at 9 (1979)). However, as previously discussed, women are now
eligible for and have been integrated into combat units. Thus, although Congress was
previously concerned about drafting large numbers of people who were categorically ineligible for
combat, this concern factually no longer justi?es the MSSA.

However, according to Defendants, Congress also worried about administrative problems
caused by ?women?s different treatment with regard to dependency, hardship[,] and physical
standards.? Id. at 28; S. Rep. No. 96-826, at 159. Defendants emphasize that Congress?s concern
about the physical readiness of women for combat has not changed. Dkt. 80 at 28?29. Defendants

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point to an acknowledgment by the Department of Defense that ?[t]hose who are opposed? to female
mandatory registration believe ?it would be inef?cient to draft thousands of women when only a
small percentage would be physically quali?ed to serve as part of a combat troop.? Dkt. 80 at 28;
Dkt. 73-1 at 145?46 (Department of Defense, Report on the Purpose and Utility of a Registration
System for Military Selective Service, 2017). Therefore, ?if men will, for the foreseeable future,
comprise the predominant percentage of persons serving in combat forces, then the basis for the
MSSA has not materially changed.? Dkt. 80 at 29; see uan Anh Nguyen v. INSCt. 2053 (2001) (noting that equal protection principles do not prohibit acknowledgment of
biological differences between genders).

Again, however, this argument falls short. At the outset, concerns about female physical
ability do not appear to have been a signi?cant factor in Congress?s decision-making process
regarding the MSSA. Instead, Congress mentioned concerns about female physical ability in
passing, within a list, in one sentence of Defendants? cited report. S. Rep. No. 96-826, at 159. In
contrast, Congress extensively discussed the ban on women in combat. Id. at 156?6 1. Congress also
focused on the societal consequences of drafting women, such as the perceived impropriety of young
mothers going off to war and leaving young fathers to care for children. Id. at 159. Defendants?
evidence simply does not support the argument that Congress preserved a male?only draft because
of concerns about female physical ability. Again, while the court must defer to Congress, the court
does not have to defer to proffered justi?cations that have little, if anything, to do with Congress?s
actual judgment on the matter. See Morales-Santana, 137 S. Ct. at 1696?97 (quoting Virginia, 518
US. at 533, 535?3 6) (?It will not do to ?hypothesiz[e] or inven[t] governmental purposes for gender

classi?cations ?post hoc in response to 

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Further, under Rostker, the dispositive issue is whether men and women are similarly situated
in regard to the draft. Rostker, 453 US. at 79. Thus, the relevant question is not what proportion
of women are physically eligible for combat?it may well be that only a small percentage of women
meets the physical standards for combat positions. However, if a similarly small percentage of men
is combat-eligible, then men and women are similarly situated for the purposes of the draft and the
discrimination is unjusti?ed. Defendants provide no evidence that Congress ever looked
at arguments on this topic and then made a ?studied choice? between alternatives based on that
information. Cf. id. at 71?72.

Had Congress compared male and female rates of physical eligibility, for example, and
concluded that it was not administratively wise to draft women, the court may have been bound to
defer to Congress?s judgment. Instead, at most, it appears that Congress obliquely relied on
assumptions and overly broad stereotypes about women and their ability to ful?ll combat roles.6
Thus, Defendants? second proffered justi?cation appears to be an ??accidental by?product of a
traditional way of thinking about females, rather than a robust, studied position. Rostker, 453 US.
at 74 (quoting Califano v. Webster, 430 US. 313, 320, 97 S. Ct. 1192 (1977)).

In short, while historical restrictions on women in the military may have justi?ed past
discrimination, men and women are now ?similarly situated for purposes of a draft or registration
for a draft.? Rostker, 453 US. at 78. If there ever was a time to discuss ?the place of women in the

Armed Services,? that time has passed. Id. at 72. Defendants have not carried the burden of showing

 

6The average woman could conceivably be better suited physically for some of today?s
combat positions than the average man, depending on which skills the position required. Combat
roles no longer uniformly require sheer size or muscle. Again, Defendants provide no evidence that
Congress considered evidence of alleged female physical inferiority in combat?either in 1980 or
2016?and concluded that drafting women was unwise based on that evidence.

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that the male-only registration requirement continues to be substantially related to Congress?s
objective of raising and supporting armies.
IV. CONCLUSION

Defendants? motion to stay and motion for summary judgment (Dkt. 80) is DENIED.
Although Plaintiffs? complaint requests injunctive relief, Plaintiffs have not briefed the issue and
their summary judgment motion only requests declaratory relief. Dkt. 60 at 13; Dkt. 73 at 24.
Therefore, Plaintiffs request for an injunction (Dkt. 60) is DENIED. Plaintiffs motion for summary
judgment (Dkt. 73) is GRANTED.

Signed at Houston, Texas on February 22, 2019.

 

G/ray . iller
Senior ited State District Judge

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