The 9th Circuit Court of Appeal heard arguments this week about the constitutionality of a male-only draft — and whether or not the case should go to trial.
The suit was brought by the San Diego-based National Coalition For Men nearly three years ago — after the military began considering allowing women into combat - but was thrown out at the time after the court ruled it wasn't "ripe" because the combat role of women was then in flux.
Now on appeal, the three-judge panel heard arguments in Pasadena a week after Secretary of Defense Ash Carter announced that he was lifting all remaining barriers to women serving in military combat jobs.
"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'."
The last major challenge to male-only registration came in the 1981 case Rostker v. Goldberg, which upheld the male-only provision mainly on the grounds that women were not allowed to serve in combat.
The judges will decide whether to dismiss the case or send it to a lower court for trial.
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