A federal appeals court panel remains torn on whether or not an all-male military draft is unconstitutional, citing a decades-old Supreme Court ruling that formerly upheld a similar draft registration rule.

Three members of the 5th U.S. Circuit Court of Appeals said in 1981 a previous Supreme Court ruling upheld the men-only draft registration system.


Marc Angelucci, an attorney for the National Coalition for Men -- which brought forth the lawsuit in an attempt to raise “awareness about the ways sex discrimination affects men and boys” -- pointed out that the lawsuit predates women being allowed to participate in combat roles.

Angelucci also added that the lower courts are not bound to outdated precedents because the circumstances have changed significantly.

U.S. Justice Department lawyer Claire Murray disagreed, arguing that the lower courts cannot overrule the Supreme Court and pointed out that Congress, which oversees the military draft process, hasn't mandated that women register.

Murray also pointed out that Congress has additional considerations when deciding if a female draft should be mandated, taking into account the need for equipment and facilities for women drafted in equal numbers to men.

In 2015, the Pentagon announced all combat roles would be open to women. The U.S. hasn’t had a military draft since 1973, during the Vietnam War.

Under current law, women can volunteer to serve in the military, but aren’t required to register for the draft. All adult men must register within 30 days of their 18th birthday or risk losing eligibility for student aid, job training and government jobs if they fail to comply.

A federal judge in Texas ruled that the all-male military draft is unconstitutional in 2019, but a federal commission is scheduled to release a final report and recommendations on the draft. The commission's decision will include whether women should be required to register.

The commission's chairman, former Rep. Joe Heck, R-Nevada, has publicly supported requiring women to register for the draft.

“The Commission has been following this case as it progresses, making our work all the more relevant and important," Heck said in an emailed statement Monday.


The Associated Press contributed to this report.