Washington — The Supreme Court on Monday turned away a challenge to the constitutionality of the federal requirement that only men register for the draft when they become legal adults, declining to revisit an earlier decision that upheld the policy on Selective Service.
The case rejected by the justices involved the Military Selective Service Act, which requires every man in the United States to register with the Selective Service System when he turns 18. Those who fail to do so can be denied federal student loans or civil service appointments, disqualified from citizenship or even face criminal charges.
But a group called the National Coalition for Men and two of its members, James Lesmeister and Anthony Davis, argued the gender-based requirement is unlawful sex discrimination in violation of the Constitution and asked the Supreme Court to invalidate the law.
“The registration requirement is one of the last sex-based classifications in federal law,” they wrote in their petition urging the Supreme Court to hear the case. “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.”
Represented by lawyers from the American Civil Liberties Union (ACLU), the men asked the Supreme Court not to make changes to the draft system, but rather just decide the requirement’s constitutionality.
“Should this court repudiate men-only registration, Congress can choose the path forward from there,” including to extend registration to women, eliminate the registration requirement or adopt a new system altogether, the ACLU lawyers told the Supreme Court.
In a statement respecting the Supreme Court’s decision not to hear the case, Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Brett Kavanaugh, noted lawmakers are considering whether to change the requirement.
“It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act,” Sotomayor wrote. “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.”
The dispute marked the second time the high court was asked to decide the constitutionality of the male-only registration requirement. In a 6-3 decision from 1981, the Supreme Court upheld the federal requirement, as women were then prohibited from serving in combat roles.
The Pentagon, however, lifted that ban in 2013, though the obligation to register for the draft is still limited only to men. The Department of Defense further announced in 2015 that all military roles, units and schools would be open to women, without exception.
Following the moves from the Defense Department, a commission established by Congress evaluated whether to expand the registration requirement to women and determined women should be required to register for Selective Service. Elimination of the male-only registration, the panel wrote in its 2020 report, was a “necessary — and overdue — step that is in the best interests of the United States.”
The question before the Supreme Court was whether its 1981 decision should be overruled and whether the federal requirement that only men register for the draft is unconstitutional.
After the National Coalition for Men brought its case, a federal district court in Texas declared the requirement unconstitutional, but said Congress was best equipped to reform the draft registration system. The Selective Service System, the agency that maintains the draft registration, appealed, and the 5th U.S. Circuit Court of Appeals reversed, citing the Supreme Court’s 1981 decision.
“It is time to overrule Rostker,” the ACLU lawyers told the high court, referring to the earlier ruling. “The registration requirement has no legitimate purpose and cannot withstand the exacting scrutiny sex-based laws require.”
The Justice Department urged the Supreme Court not to hear the case, arguing reconsideration of the constitutionality of the registration requirement would be “premature,” as Congress is considering the scope of the measure.