Supreme Court Rejects Case Challenging Male-Only Draft Registration

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The Supreme Court of the United States in Washington, D.C.
The Supreme Court of the United States in Washington, D.C., Feb 6, 2021. (U.S. Army National Guard/2nd Lt. Ashley Goodwin)

The U.S. Supreme Court has decided against hearing a case challenging the constitutionality of the men-only registration requirement for the Selective Service System.

The Court announced Monday that it denied a petition in the case, National Coalition for Men v. Selective Service System, with the justices agreeing with an argument by the federal government that Congress, not the courts, should decide the matter.

Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Brett Kavanaugh, wrote in a statement that the court should not interfere since Congress is deliberating the recommendations of a commission created to study the issue.

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"It remains to be seen, of course, whether Congress will end gender-based registration ... but at least for now, the court's long standing deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue," Sotomayor wrote.

The National Commission on Military, National and Public Service produced a report last March recommending that Selective Service registration be extended to women. The 246-page report also included more than 160 other recommendations on non-military national and public service opportunities and civic education.

It included draft legislation that would require all Americans to register for the Selective Service. The proposal was introduced in the House in March 2020 but never made it past committee, overshadowed by the COVID-19 pandemic.

Sotomayor cited the report and a March 2021 Senate Armed Services Committee hearing during which Chairman Sen. Jack Reed, D-R.I., expressed "hope" that the requirement would be included in the fiscal 2022 defense policy bill, in supporting the rejection.

In 1981, the Supreme Court voted 6-3 to uphold the men-only registration requirement. At the time, Justice William Rehnquist said the purpose of the registration was to ensure that the Pentagon could raise military forces for combat. Since women could not serve in combat, the gender-based requirement was not unconstitutional, he explained.

But in 2013, the Defense Department lifted its ban on women serving in combat -- a move that prompted a lawsuit from two plaintiffs, James Lesmeister and Anthony Davis, who asserted that the system was discriminatory since it required only men to register for the draft.

In 2015, the Pentagon opened all military specialties to women.

"Women have passed the military's demanding test to become U.S. Army Rangers, Navy SEALs [sic] and Green Berets," Sotomayor wrote. "As of 2015, there are no longer any positions in the United States Armed Forces closed to women."

(A woman has made it through Navy SEAL officer assessment and selection, but no women have graduated from Basic Underwater Demolition/SEAL training to date.)

In April, lawmakers introduced legislation to abolish the Selective Service System entirely, calling the $25 million annual cost a waste of taxpayer dollars.

Sens. Ron Wyden, D-Ore., and Rand Paul, R-Ky., noted that the draft was abolished in 1973 with the advent of the all-volunteer force.

"Congress hasn't come close to reinstating a military draft in 50 years, and I can't imagine a scenario where it would," Wyden said.

"It has been nearly 50 years since the draft was last used. I've long stated that if a war is worth fighting, Congress will vote to declare it and people will volunteer. This outdated government program no longer serves a purpose and should be eliminated permanently," Paul said.

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

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