WASHINGTON (CN) — A challenge to the male-only registration requirement for the military draft was rejected by the U.S. Supreme Court on Monday morning, leaving in place a lower court’s order denying a men’s rights group's attempt to strike down the registration system as unconstitutional.
Justice Sonya Sotomayor, joined by Justices Stephen Breyer and Brett Kavanaugh, issued a three-page statement agreeing with the court's decision not to hear the case for now.
“Beginning in 1991, 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,” Sotomayor wrote, outlining changes in the role of women in the military over the past few decades.
The Barack Obama appointee said much has changed since the high court's 1981 decision in Rostker v. Goldberg, which upheld the gender-based draft system based on the finding that women were “excluded from combat” roles at the time and therefore “would not be needed in the event of a draft.”
But Sotomayor noted the issue is currently before Congress in the form of the National Commission on Military, National, and Public Service, which was formed in 2016 to study whether Selective Service registration should be conducted “regardless of sex.” The panel released its results last year, recommending that women be included in the draft registration 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.”
Those who supported the National Coalition For Men's challenge to the rules were displeased with Monday’s denial.
Among them is Jenner & Block partner Todd C. Toral, who wrote an amici brief on behalf of Retired General Michael Hayden, Retired General Stanley McChrystal and other retired military personnel asking the high court to hear the dispute.
“The sex discrimination inherent in the Military Selective Service Act is a vestige of a bygone era that not only ignores the contributions of women to our nation’s armed forces but also undermines our national security by excluding them,” Toral said in a statement,
The attorney pointed to Sotomayor’s own accounting of how women’s roles in the military have changed since the last time the issue came before the Supreme Court.
“It’s high time our federal laws reflect the equal abilities of women to protect and serve our country,” he said.
Jaime Ann Santos, an attorney with the Washington-based firm Goodwin Procter who wrote an amici brief on behalf of the Modern Military Association of America, was similarly disappointed with the high court’s decision and went a step further to say Sotomayor was too optimistic in her reliance on Congress.
“I don’t think deference to Congress warrants allowing a discriminatory law to stand,” she said in an email. “I do hope Congress acts, but if it does not do so promptly, I hope the court will consider this issue again.”
Attempts to reach the Justice Department, which defended the male-only draft rules at the Fifth Circuit, were not returned by press time.
The decision not to hear the case comes over a year after the National Commission on Military, National, and Public Service released its final report recommending that military draft registration be kept in place and expanded to women.
But the March 2020 release came at the height of the coronavirus outbreak and its findings were never given a proper hearing.
Debra Wada, the commission’s vice chairman on military service, told the Federal News Network three months ago that if a draft was being considered, "both men and women would be equally qualified to meet the current accession standards."
The article suggested the end of virus-related limits on in-person congressional meetings may finally give the report a chance to get debated.
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