US Supreme Court won’t hear case on limiting military draft to men

The New York Times

Washington, June 7, 2021: The Supreme Court on Monday declined to hear a challenge to a federal law that requires only men to register for the military draft.

As is the court’s custom, it gave no reasons for turning down the case. But three justices issued a statement saying that Congress should be allowed more time to consider what they acknowledged was a significant legal issue.

“It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act,” Justice Sonia Sotomayor wrote in the statement, which was joined by Justices Stephen G. Breyer and Brett M. Kavanaugh. “But at least for now, the court’s longstanding deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue.”

The requirement is one of the last sex-based distinctions in federal law, one that challengers say cannot be justified now that women are allowed to serve in every role in the military, including ground combat. Unlike men, though, they are not required to register with the Selective Service System, the government agency that maintains a database of Americans who would be eligible for the draft were it reinstated.

The unequal treatment “imposes selective burdens on men, reinforces the notion that women are not full and equal citizens, and perpetuates stereotypes about men’s and women’s capabilities,” lawyers with the American Civil Liberties Union wrote in a petition on behalf of two men who were required to register and the National Coalition for Men.

In 1981, in Rostker v. Goldberg, the Supreme Court rejected a sex-discrimination challenge to the registration requirement, reasoning that it was justified because women could not at that time serve in combat roles.

“Since women are excluded from combat service by statute or military policy,” Justice William H. Rehnquist wrote for the majority, “men and women are simply not similarly situated for purposes of a draft or registration for a draft.”

On Monday, Justice Sotomayor wrote that “the role of women in the military has changed dramatically since then.”

“Beginning in 1991,” she wrote, “thousands of women have served with distinction in a wide range of combat roles, from operating military aircraft and naval vessels to participating in boots-on-the-ground infantry missions.”

Lower courts had agreed with that assessment.

In 2019, Judge Gray H. Miller, of the Federal District Court in Houston, ruled that since women can now serve in combat, the men-only registration requirement was no longer justified. A unanimous three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, agreed that “the factual underpinning of the controlling Supreme Court decision has changed.” But it said that only the Supreme Court could overrule its own precedent.