Supreme Court won't hear case arguing military draft registration discriminates against men

A member of the National Guard patrols the steps of the Supreme Court on Monday, February 8, 2021.

Tom Williams | CQ-Roll Call, Inc. | Getty Images

The Supreme Court on Monday said it won't hear an appeal from men who are challenging the male-only U.S. military draft registration requirement on the grounds that it amounts to sex-based discrimination.

The court denied the challenge, brought by the National Coalition for Men and two men, in an order with no noted dissents.

In a statement, Justice Sonia Sotomayor said she agreed with the court's decision to hold off on taking the case given that Congress could soon make the registration requirement applicable to women anyway. The Military Selective Service Act requires men to register for the military draft when they turn 18 years old.

"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."

Sotomayor's statement was also signed by Justices Stephen Breyer and Brett Kavanaugh. It cited a report issued last year by the National Commission on Military, National, and Public Service that called for eliminating the male-only draft registration requirement.

The statement also alluded to recent comments by Sen. Jack Reed, D-R.I., who chairs the armed services committee and has said he hopes to incorporate a gender-neutral registration requirement in upcoming legislation.

The Supreme Court upheld the male-only registration requirement in the 1981 case Rostker v. Goldberg. At the time, the court reasoned that, because women were excluded from combat, they "would not be needed in the event of a draft."

The National Coalition for Men asked the court to overturn that 1981 ruling now that women can serve in combat roles, citing the 5th Amendment to the Constitution. The Department of Defense lifted a ban on women serving in combat in 2013. Since 2015, women have been able to serve in any role in the United States Armed Forces that is open to men.

"The registration requirement is one of the last sex-based classifications in federal law," Ria Tabacco Mar, an American Civil Liberties Union attorney representing the men's coalition, wrote in court papers. "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."

In a statement on Monday, Mar said her clients were "disappointed the Supreme Court allowed one of the last examples of overt sex discrimination in federal law to stand."

"We urge Congress to update the law either by requiring everyone to register for the draft, regardless of their gender, or by not requiring anyone to register," she said.

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