Now the Supreme Court, in a case reminiscent of the lawsuits that brought fame to a feminist lawyer named Ruth Bader Ginsburg, is being asked to force the hand of a reticent Congress by declaring the male-only military draft unconstitutional.
“The registration requirement is one of the last sex-based classifications in federal law,” says a petition from the American Civil Liberties Union, which represents a group called 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 lead lawyer is Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project. It’s the position Ginsburg held as she filed now-landmark lawsuits challenging gender-discrimination laws, before Ginsburg became a judge and then the second woman to serve on the Supreme Court.
“The Ginsburg tie is multilayered,” Mar said. Ginsburg’s victories from the 1970s are cited throughout the lawsuit. And it employs a favorite Ginsburg tactic: representing male plaintiffs to challenge a legal provision that treats the genders differently, and challenges long held assumptions that it says are made obsolete by changing times.
Last week, a group of retired military leaders from across the branches of service asked the Supreme Court to take up the case and declare that a male-only registration violates the constitution’s guarantee of equal protection.
“The vast majority of men . . . have no advantage in readiness over women, who the current statutory scheme forbid from registering,” said the brief filed by former National Security Agency director Michael Hayden and others.
“Such a regime makes no sense, either as a matter of Fifth Amendment law or of military planning,” it says. Hayden is joined in the effort by eight other retired top officers, including Army generals Stanley McChrystal and Claudia Kennedy.
But the “don’t-draft-my-daughter” sentiment remains strong both among the public and in Congress, and it is a big ask for the court to take up the challenge. There is no pressing need for the justices to take action now rather than wait for Congress to react to the commission’s recommendations — it has been more than 45 years since men were last drafted into service.
And the court would have to do something it says it is reluctant to do, which is overturn one of its precedents.
In 1981, the court faced the same question and found that it was constitutional to restrict the draft to men. In Rostker v. Goldberg, the court ruled 6 to 3 that because the primary function of the draft was to form combat-ready forces, Congress was justified in treating men and women differently. At the time, women were excluded from combat roles.
Even though that is no longer the case — women became eligible for all military positions in late 2015 — the Trump administration argued in lower courts that Congress retains the power to treat the genders differently when it comes to the military.
“As Rostker itself recognized, and as the Supreme Court has reaffirmed in numerous other cases, Congress is entitled to extremely wide deference when it legislates with regard to military affairs,” the Justice Department argued in the lower court. That is true, it said, even if its actions might be deemed unconstitutional “in the civilian context.”
Since then, the National Commission on Military, National, and Public Service has made its recommendation that women be included in the draft, and there is a new commander in chief. The Biden administration asked the Supreme Court for additional time to file its response to the ACLU challenge, and its brief is due next month.
After the ban on women serving in combat roles was lifted, two men, James Lesmeister and Anthony Davis, along with the National Coalition for Men, challenged the male-only restriction requirement. It commands men to register with the Selective Service within 30 days of their 18th birthday and notify the board of address changes until age 26.
And even though there has not been a draft for decades, the registration is not treated casually. Men who fail to comply could face criminal prosecution, denial of federal student loans, disqualification from citizenship and other penalties.
U.S. District Judge Gray H. Miller of Houston in 2019 ruled that the registration requirements were unconstitutional. Because women are no longer barred from combat roles, he said, Congress’s justification for excluding females that had persuaded the Supreme Court in 1981 no longer sufficed.
The government appealed, and a three-judge panel of the U.S. Court of Appeals for the 5th Circuit overturned Miller’s decision, citing Rostker as the beginning and ending of the matter.
“The factual underpinning of the controlling Supreme Court decision has changed, but that does not grant a court of appeals license to disregard or overrule that precedent,” the panel said in a short, unsigned opinion. Only the justices possess that power, the panel said.
Mar said the Supreme Court should overturn its precedent because “its fundamental premise is no longer true.”
The military removed its categorical ban on women in combat in 2013. All jobs became open to women two years later. The generals’ brief says women make up 17 percent of the military these days, about the same as the percentage on the New York City police force.
And the generals say that the very basics of a military fighting force has changed in the past 40 years.
Even in World War II, they say, less than half of the drafted men were assigned to combat roles. “That would be truer today than at any point in the past,” they argue.
“Warfare today requires intelligence and communication specialists, linguists, logisticians, medical personnel, drone and cyber operators, and more,” their brief says. “Noncombat positions comprise nearly 80 percent of today’s military occupations.”
But Mar also contends that Rostker was wrongly decided at the time and improperly credited Congress’s reliance on stereotypes of men and women.
The court in 1981 found that male-only registration was “not a case of Congress arbitrarily choosing to burden one of two similarly situated groups.” Because the primary purpose of the draft was to provide combat-ready troops and women were restricted from combat, the majority said, men and women “are simply not similarly situated for purposes of a draft or registration for the draft.”
Mar said that is justifying one type of discrimination by referencing another.
“Requiring only men to register reflects the notion that women would be unfit to serve in the event of a draft — and that men would be unfit to stay home as caregivers,” she said. “Such stereotypes demean both men and women.”
The court that decided Rostker was the last to be composed entirely of men. Sandra Day O’Connor joined the court a few month later, and Ginsburg in 1993. The ACLU’s petition relies in part on Ginsburg’s 1996 majority opinion in United States v. Virginia, which said Virginia Military Institute must be open to women as well as men.
Four justices are required to accept a case.
The lawsuit does not ask the Supreme Court to force women as well as men to notify the government of their whereabouts should war arise.
“Congress has considerable latitude to decide how to respond” should the court find male-only registration unconstitutional, the petition says.
“It could require everyone between the ages of eighteen and twenty-six, regardless of sex, to register; it could rescind the registration requirement entirely; or it could adopt a new approach altogether, such as replacing the [draft] registration requirement with a more expansive national service requirement.”
It could be a couple of months before the court decides whether to hear the challenge.