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Supreme Court refuses case to include women in military draft

Female Marines train for Iraq border security. (U.S. Marine Corps/Released)
June 07, 2021

On Monday, the U.S. Supreme Court said it won’t take a case, brought by the National Coalition For Men, which challenged the constitutionality of the male-only draft.

In a decision with no noted dissenting opinions, the court declined to take the case. In the opinion, Justice Sonia Sotomayor wrote that the court had decided to defer the matter to Congress, as it “actively weighs the issue.”

Sotomayor wrote, “It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act. 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 court’s decision to defer the issue to Congress comes after lawyers within President Joe Biden’s administration urged the court to instead let Congress handle the matter, according to the Associated Press.

In August 2020, a U.S. federal court upheld the constitutionality of the male-only draft. The Supreme Court’s Monday decision means that for now, the male-only draft will stay in place.

A number of civil rights groups have challenged the constitutionality of the male-only draft recently, arguing that requiring only males to sign up for the draft is sexual discrimination. National Coalition For Men v. Selective Service System

The National Coalition For Men is one group that has led the legal effort to challenge the male-only draft. Ria Tabacco Mar, the director of the American Civil Liberties Union’s Women’s Rights Project, is also representing the National Coalition For Men and two individual men challenging the male-only draft.

The last war-time draft took place during the Vietnam War and since then, the military has been an all-volunteer service. While the draft has not been used for decades, men are still required to sign up for a potential draft through the military Selective Service System. While women are not required to register with the Selective Service System, men who refuse to do so face a felony charge punishable by a fine of up to $250,000 and five years in prison and they could lose eligibility for student loans and civil service jobs.

Tabacco Mar told the Associated Press that beyond the legal penalties men face, a male-only draft raises another concern.

“It’s also sending a tremendously harmful message that women are less fit than men to serve their country in this particular way and conversely that men are less fit than women to stay home as caregivers in the event of an armed conflict,” she said. “We think those stereotypes demean both men and women.”

The last time the Supreme Court considered the constitutionality of the male-only draft system, in 1981, the court ruled in a 6-3 decision to keep the male-only draft in place. At the time, then-Justice William Rehnquist decided that the purpose of the registration “was to prepare for a draft of combat troops” and because women were not eligible to serve in combat, the law could not be considered unconstitutional sexual discrimination.

In the years since the Supreme Court’s decision, the rules regarding women in combat have changed. In 2013, the Department of Defense opened combat roles to women.

Last year a congressional commission also determined “the time is right” to extend the registration requirement to both men and women.

In February, a group of 10 retired U.S. generals and admirals submitted a “friend of the court” amicus curiae brief in favor of overturning the male-only draft. They argued, “Including women in the selective service would double the pool of candidates available to draft, raising the overall quality of the conscripted force and enabling the Nation to better meet its military needs.” The group also argued that while opening up combat roles to women, the U.S. military did not lower its training standards.”

CNBC reported Sen. Jack Reed (D-RI), who chairs the Senate Armed Services Committee, said he hopes to include a gender-neutral selective service registration requirement in upcoming legislation.