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2nd Judge Rules Against Male-Only Draft

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By William Vogeler, Esq. on March 07, 2019 6:00 AM

Another federal judge has approved a lawsuit that says the all-male military draft is unconstitutional.

This time, a New Jersey judge said a woman can proceed against the Selective Service System for denying her the right to register. Last time, a Texas judge said two men prevailed in their claim that the draft was unfair to them.

In either case, the draft is not likely to change soon. President Trump is behind it, and it's a long way to the U.S. Supreme Court.

Equal Protection

In Kyle-Labell v. Selective Service System, Judge Esther Salas ruled that Elizabeth Kyle-Labell may proceed with her lawsuit. The plaintiff alleges the draft deprives women of equal protection of the law.

The government contended that only Congress can decide the issue and that the Supreme Court already said the draft was constitutional in 1981. The judge basically said that was then, but this is now.

The difference, she said, is that Congress and the Pentagon have removed gender-based restrictions for women serving in combat. The Trump administration, however, has said it would "disrupt or distract" military operations.

USA Today reported that the ruling "increases the likelihood that the issue could get to the Supreme Court" because of the earlier decision in Texas.

"Time Has Passed"

In that case, Judge Gray Milleer said the "time has passed" for a debate on whether women belong in the military. He said historical restrictions on women in the military "may have justified past discrimination," but times have changed.

The case had been working through the trial court for six years. The decision, issued about two weeks ago, was a declaratory judgment and largely symbolic.

It laid the groundwork for the New Jersey case, however, where the plaintiff is seeking injunctive relief to change the draft.

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