Retired 3- and 4-Star Generals Petition Court to Add Women to Draft Registration

Recruits participate in the Initial Strength Test.
Recruits with Lima Company, 3rd Recruit Training Battalion, participate in the Initial Strength Test (IST) at Marine Corps Recruit Depot, San Diego, Feb. 12, 2021. (U.S. Marine Corps/Lance Cpl. Zachary T. Beatty)

Ten retired general and flag officers, including the former director of the National Security Agency, have filed a brief with the U.S. Supreme Court supporting expansion of draft registration to include women.

Retired Air Force Gen. Mike Hayden, former director of the National Security Administration; Army Gen. Stanley McChrystal; Army Lt. Gen. Claudia Kennedy and others filed a "friend of the court," or amicus, brief Wednesday supporting a case brought against the government by the National Coalition For Men, a group challenging the constitutionality of the Selective Service System's male-only registration restriction.

The case landed in the Supreme Court after a federal appeals court ruled in August that the male-only draft is constitutional.

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The plaintiffs -- and the retired flag officers -- argue that the exclusion is discriminatory and "inimical to the nation's security interests."

"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," wrote Hayden and the others.

The case -- National Coalition For Men, James Lesmeister and Anthony Davis v. Selective Service System and Donald Benton -- began as a lawsuit in 2013 by Lesmeister, later joined by Davis and the San Diego-based men's organization.

U.S. men between the ages of 18 and 26 are required to register with the Selective Service System. The lawsuit asserts that the system discriminated against Lesmeister and Davis based on gender. Lesmeister and the coalition argued that women should be included in the system database and subject to the draft if it is ever needed.

A U.S. District Court judge agreed with the plaintiffs in February 2019, ruling that the male-only draft was unconstitutional, discriminating against men on the basis of sex in violation of the Fifth Amendment's equal protection clause.

A three-judge panel with the 5th Circuit U.S. Court of Appeals ruled in August that, while the facts of an earlier Supreme Court decision that set precedent confirming the legality of the male-only draft registration had changed, this "does not grant a court of appeals license to disregard or overrule that precedent."

In the amicus brief, the general and flag officers argue that women, who make up 17% of the armed forces, now work in combat and non-combat roles -- something that does not "lower military standards."

"Rather than lowering military standards, fully integrating the armed forces has ensured that each individual, regardless of gender, is thoroughly qualified to meet the specific needs of his or her position," they wrote.

An attorney who helped the officers draft their brief, Todd Toral of the Los Angeles-based firm Jenner & Block, called the restriction "one of the last examples of overt sex discrimination written into law from a bygone era."

"For years, American women have prevailed in our nation's toughest military schools and military ranks. It's time we value their contributions and service, and it's time that our policies reflect this cultural shift," said Toral, a Marine Corps veteran.

Other groups that have filed briefs in favor of the plaintiffs include the Modern Military Association of America, the National Organization for Women Foundation, Women's Law Project, Gender Justice and Women's Law Center of Maryland.

The National Coalition For Men, represented by the American Civil Liberties Union, filed its case petition to the U.S. Supreme Court on Jan. 8. The federal government's response is due by March 15.

-- Patricia Kime can be reached at Follow her on Twitter @patriciakime.

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