Politico

3 justices suggest male-only draft is unconstitutional


Three members of the Supreme Court indicated Monday that the law requiring only men to register for the draft may be unconstitutional and outdated, but the high court balked at formally addressing the issue — for now.

The court denied review to a case brought by the National Coalition for Men, challenging the registration requirement reintroduced in 1980 by former President Jimmy Carter.

However, Justices Sonia Sotomayor, Stephen Breyer and Brett Kavanaugh issued an opinion saying the exclusion of women from the draft requirement made little sense in a military that has “changed dramatically” since the Supreme Court upheld the policy in 1981.

“Thousands of women have served with distinction in a wide range of combat roles, from operating military aircraft and naval vessels to participating in boots-on-the-ground infantry missions,” wrote Sotomayor, joined by Breyer and Kavanaugh. As of 2015, the military opened all roles to women, she noted.

In her brief, three-page opinion, Sotomayor noted that the high court has said the government needs “exceedingly persuasive justification” to discriminate on the basis of gender. She didn’t say outright that the male-only draft law cannot meet that standard, but the tone of the opinion suggested the three justices who signed onto it were highly dubious.

Still, Sotomayor’s opinion was deferential to Congress on the issue, noting that lawmakers created a commission to study the question in 2016 and received a report last year recommending the elimination of male-only registration.

“It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act. 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 wrote.

She also noted that Sen. Jack Reed (D-R.I.), chair of the Senate Armed Services Committee, said in March that he hopes Congress will implement a gender-neutral policy in the next major defense bill.

The other six justices did not issue any statement about their views on the issue. The votes of four justices would have been required for the court to grant review.

Lawyers pressing the legal challenge said Monday that they regret the high court’s decision to sidestep the issue.

“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,” said Ria Tabacco Mar, director of the American Civil Liberties Union’s Women’s Rights Project.

“We’re 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,” Mar said in a statement.

Under federal law, men who fail to register for the draft can be denied student financial aid and federal jobs. Many states also refuse drivers licenses to men between 18 and 26 who are not registered.

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