The U.S. Supreme Court denied a petition filed by a men’s rights group asking the high court to rule on whether the federal requirement that only men, but not women, face required registration for the draft violates the Fifth Amendment’s right to equal protection in light of modern gender-balanced combat roles.
The case National Coalition for Men v. Selective Service System argued the 1981 case precedent Rostker v. Goldberg was now outdated and should be overturned, “This Court held that the Military Selective Service Act, under which men—but not women—are required to register for the draft, withstood constitutional challenge because women at that time were categorically prohibited from serving in combat roles.”
“In 2013, the Department of Defense lifted the ban on women in combat. But the obligation to register remains limited to men,” reads the challenge.
“The question presented is whether, in light of the Department of Defense having lifted the ban on women in combat, this Court should overrule Rostker and hold that the federal requirement that men but not women register for the Selective Service, authorized under 50 U.S.C. § 3802(a), violates the right to equal protection guaranteed by the Fifth Amendment.”
Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Brett Kavanaugh, explained in a 3-page opinion representing the decision that in matters of national defense and military affairs, the matter is best left to Congress.
The Biden administration’s Justice Department argued the Supreme Court should wait for Congress to act instead of intervening. Acting Solicitor General Elizabeth Prelogar said 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 Justices wrote that “The Fifth Amendment to the United States Constitution prohibits the Federal Government from discriminating on the basis of sex absent an ‘exceedingly persuasive justification’.”
However, on the issue that the Military Selective Service Act requires only men to register, despite all gender-based combat limitations being removed by the U.S. Military as of 2015, Sotomayor said “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.”
It is the second time in 40 years that The Military Selective Service Act registration requirement faces a crucial challenge in the Supreme Court concerning whether gender-based discernment in the military’s draft requirements is legitimate.
Men’s Group disappointed over the Supreme Court’s decision
In a statement, The American Civil Liberties Union (ACLU) expressed disappointment over the Supreme Court’s move not to hear the case, “Requiring only men to register for the draft reflects the outdated and sexist notion that women are less fit to serve in the military and that men are less able to stay home as caregivers in the event of an armed conflict. Such stereotypes demean both men and women,” claimed Rita Tabacco Mar, Director of the ACLU’s Women’s Rights Project, in a statement.
Mar said the male-only draft was “one of the last examples of overt sex discrimination in federal law” and called on Congress to “to update the law either by requiring everyone to register for the draft, regardless of their gender, or by not requiring anyone to register.”
Andre Segura, Legal Director for the ACLU called the male-only draft one of the “last remaining vestiges of gender discrimination written into federal law” in a statement.
Though Congress and the courts have actively eliminated nearly every gender-based distinction in federal law, only the Military Selective Service Act remains the exception.
The Act requires that every male-born national and denizen from ages 18 and 26 sign up for draft eligibility under penalty of fines of up to $250,000, the loss of student loan eligibility, and a felony record or a five-year prison sentence.
With reporting by Simone Jonker.