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Supreme Court Rejects Review of Male-only Military Draft

June 7, 2021by Jessica Gresko, Associated Press
Army 1st Lt. Shaye Haver, center, and Capt. Kristen Griest, right, pose for photos with other female West Point alumni after an Army Ranger school graduation ceremony at Fort Benning, Ga. (AP Photo/John Bazemore, File)

WASHINGTON — The Supreme Court on Monday decided not to review a lawsuit asking whether it’s sex discrimination for the government to require only men to register for the draft when they turn 18.

The challenge, originally brought by a men’s rights group, asserted that the male-only draft is unlawful in light of a 2013 policy shift by the Defense Department that opened up combat roles to women.

As is their custom, the justices did not explain their reasons for rejecting the case, but the question it raised was largely academic, as the U.S. has not had a draft since the Vietnam War.

Still, the registration requirement is one of the few remaining places where federal law treats men and women differently, and women’s groups were among those arguing that allowing it to stand is harmful.

Ria Tabacco Mar, the director of the American Civil Liberties Union’s Women’s Rights Project, who urged the court to take up the issue, says requiring men to register imposes a “serious burden on men that’s not being imposed on women.” 

Men who do not register  can lose eligibility for student loans and civil service jobs, and failing to register is also a felony punishable by a fine of up to $250,000 and five years in prison. But Tabacco Mar said the male-only requirement does more than that.

“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. We think those stereotypes demean both men and women,” she said.

A group of retired senior military officers and the National Organization for Women Foundation were also among the others urging the court to take the case.

Now that the high court has passed on the case, it will be up to Congress to decide how to respond, either by passing a law requiring everyone to register or deciding registration is no longer necessary.

The issue of who has to register for the draft has been to the court before. In 1981, the court voted 6-3 to uphold the men-only registration requirement.

At the time, the decision was something of an outlier because the court was regularly invalidating gender-based distinctions in cases about other areas of the law. Many of those cases were brought by the founding director of the ACLU’s Women’s Rights Project, Ruth Bader Ginsburg, who became a justice in 1993.

The last time the high court considered the Military Selective Service Act, then-Justice William Rehnquist explained that the purpose of registration “was to prepare for a draft of combat troops.” He said that because women could not serve in combat, the law was not unlawful sex discrimination that violated the Constitution.

But military policy has changed. In 2013, the Department of Defense lifted the ban on women serving in combat. Two years later, the department said all military roles would be open to women without exception.

Just last year, a congressional commission concluded that the “time is right” to extend the obligation to register to women. “The current disparate treatment of women unacceptably excludes women from a fundamental civic obligation and reinforces gender stereotypes about the role of women, undermining national security,” the commission said in a report.

The Biden administration urgede the justices not to take the case and to let Congress instead tackle the issue. Administration lawyers wrote in a brief that any “reconsideration of the constitutionality of the male-only registration requirement … would be premature at this time” because Congress is “actively considering” the issue.

The Selective Service System, the agency that oversees registration, said in a statement that it doesn’t comment on pending litigation but that it is “capable of performing whatever mission Congress should mandate.”

The Associated Press contributed to this report.

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