The case was argued in March and was the result of a lawsuit by the National Coalition for Men and two men challenging the male-only draft. They argued that the 1981 case was decided at a time when women were largely absent from combat.
Thursday's unanimous ruling from the three-judge panel acknowledged that “the factual underpinning of the controlling Supreme Court decision has changed. However, the judges noted, “that does not grant a court of appeals license to disregard or overrule that precedent.”
Plaintiffs in the case could seek a rehearing before the full 17-judge appeals court or go to the Supreme Court. Harry Crouch, president of the National Coalition for Men, said organization leaders will discuss their next move with attorneys. “All I can tell you is we will be moving the case forward,” he said.
The U.S. government stopped drafting young men into the military in 1973. But every male must still register for the draft when he turns 18. Earlier this year — after the arguments before the 5th Circuit — a federal commission recommended including women in the military draft system.
“The Commission concluded that the time is right to extend Selective Service System registration to include men and women, between the ages of 18 and 26. This is a necessary and fair step, making it possible to draw on the talent of a unified Nation in a time of national emergency," the commission's final report said.
The 2019 district court decision declaring the male-only draft unconstitutional had been appealed by the Selective Service System, the federal agency that administers the draft. The appeal was argued during a series of 5th Circuit hearings at Tulane University. The judges were Carl Stewart, Don Willett and Jacques Weiner.
Arguing for the National Coalition for men was Marc Angelucci, an attorney who was shot to death in July. Authorities later linked the killing of Angelucci in California to Roy Den Hollander, 72, who was found dead of a self-inflicted gunshot wound on July 20, the day after an ambush shooting in New Jersey that killed U.S. District Judge Esther Salas’ 20-year-old son and wounded her husband.