Supreme Court declines to hear case questioning whether women must also register for the draft
WASHINGTON – The Supreme Court said Monday it will not hear an appeal questioning whether the requirement that men – and not women – register for the military draft is constitutional in a case that challenged one of the last remaining sex-based classifications in federal law.
Associate Justice Sonia Sotomayor wrote that the decision is for Congress to make – at least for now.
“It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act,” Sotomayor wrote in a statement joined by Associate Justices Stephen Breyer and Brett 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.”
Forty years ago, the Supreme Court upheld the constitutionally of requiring men – and only men – to register for the draft through the Selective Service System because, the justices reasoned at the time, the purpose of a draft is to build a pool of combat troops.
Back then, that meant men. Not any longer.
The Department of Defense formally lifted the ban on women in combat in 2015. And so the question before the court now is whether a male-only registration requirement violates the Constitution’s guarantees of equal protection and due process.
“The registration requirement is one of the last sex-based classifications in federal law,” wrote attorneys for two men who were required to register and the National Coalition for Men. “It 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.”
The National Coalition for Men, a men’s rights group, is backed by the American Civil Liberties Union.
The modern registration approach was adopted during World War I, according to court documents. The draft inducted nearly three million men into the military for World War I, over ten million during World War II, 1.5 million for the Korean War and nearly 2 million for Vietnam, according to the nonpartisan Congressional Research Service.
In this Oct. 4, 2017, photo, a female U.S. Army recruit practices building clearing tactics with male recruits at Ft. Benning, Ga (Photo: John Bazemore, AP)
The Selective Service System, a federal agency, told the nation’s highest court that reconsidering the male-only draft registration would be “premature.” Its attorneys argued that the court’s earlier case, Rostker v. Goldberg, “made clear that the court should defer to Congress.”
In the frequently asked questions section of the agency’s website, the second question is “why aren’t women required to register?” The answer, in the agency’s words, is that the Military Selective Service Act, enacted in 1948, authorizes only men to sign up.
A federal district court ruled for the male plaintiffs in the case but the New Orleans-based U.S. Court of Appeals for the 5th Circuit reversed that decision, citing the Supreme Court’s earlier precedent in the Rostker case.
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