'Things Have Changed,' U.S. Judge Says Of Case Over Men-Only Military Draft

By Bill Chappell

Published December 12, 2015 at 11:14 AM EST

A lawsuit challenging the constitutionality of an all-male military draft could be revived, after the Pentagon changed its policy on women in combat. Here, soldiers attend a ceremony in Arlington, Va., earlier this year.

One week after Defense Secretary Ash Carter announced women in the U.S. military can serve in any combat role, a federal appeals court is considering a lawsuit from a men's group that says a male-only draft is unconstitutional.

The U.S. Court of Appeals for the Ninth Circuit in California will now decide "whether to dismiss the case or send it to a lower court for trial," member station KPCC reports.

At issue is the "ripeness" of the case — whether conditions are right for a federal court to rule on the government's policies, or whether the rules are still in a state of flux. Those are the grounds on which a district court disallowed the lawsuit from the National Coalition For Men in 2013.

"The question is, is it ripe now," said Judge Ronald M. Gould, "in light of what the Department of Defense has said so clearly."

After asking the plaintiffs' attorney whether they're arguing that the case should be sent back to district court to determine the merits of the case, Gould added, "As far as I'm concerned, just speaking as one judge, that's probably what we should do."

Here's how KPCC summarized last week's hearing:

" 'Things have changed,' Judge Marsha Berzon said at one point during Tuesday's proceedings. 'Right now the position is that all combat jobs are open to women, no?'

"Attorneys for the federal government said the case should still be thrown out arguing, in part, that because the named plaintiff, James Lesmeister, has registered for the draft, the point is moot.

" 'There is no assertion in the complaint of any injury whatsoever,' Assistant U.S. Attorney Sonia McNeil said.

Berzon pushed back, saying: 'but they do have an assertion of an injury, i.e. "We have to register. If I were a woman, I wouldn't have to register." ' "

When he announced the Pentagon's policy change, Carter was asked whether the shift would mean that women should now begin registering for the draft with the U.S. Selective Service Systems.

"That is a matter of legal dispute right now," Carter said.

The case represents a new chapter in arguments over gender and the draft. After President Jimmy Carter revived the registration process in 1980, the U.S. Supreme Court ruled in the Rostker v. Goldberg case a year later that Congress could legally require men, but not women, to register for the draft. That decision reversed a district court's ruling for the plaintiffs.

The majority opinion in the Supreme Court ruling includes this reasoning: "In light of the combat restrictions, women did not have the same opportunities for promotion as men, and therefore it was not unconstitutional for Congress to distinguish between them."

Dissenting in that case, Justice Thurgood Marshall was joined by Justice William J. Brennan in saying that the U.S. policy "categorically excludes women from a fundamental civic obligation."