Men renew challenge to male-only draft rule before Ninth Circuit

(CN) — A challenge to the military’s all-male draft registration system hit a steep roadblock on Friday as the Ninth Circuit signaled reluctance to overturn longstanding Supreme Court precedent.

“This case here is about an archaic law that perpetuates these stereotypes that women can’t serve in the military, which they clearly can,” said Nadine Lewis, a Santa Monica-based attorney representing the plaintiffs.

Lewis represents the National Coalition for Men and five individual men who claim the Selective Service System’s draft registration requirements constitute unconstitutional sex discrimination.

A major obstacle facing the plaintiffs is that a ruling in their favor would require the Ninth Circuit to contradict an earlier Supreme Court decision.

“The Supreme Court does not look kindly on us disregarding their precedent,” said U.S. Circuit Judge Johnnie B. Rawlinson, a Bill Clinton appointee. It was a sentiment echoed by the panel throughout the hearing.

The Military Selective Service Act requires men ages 18 to 26 to register for potential conscription. Those who fail to do so and keep their contact information, including immigrants, can face fines up to $250,000 and lose eligibility for federal aid and citizenship, though no prosecutions have occurred since the 1980s.

In 1981, the Supreme Court upheld the male-only system in Rostker v. Goldberg , ruling that excluding women was justified since they were excluded from combat.

Lewis argued that much has changed since then: the ban on women in combat was lifted in 2013, and by 2016, the Pentagon opened all military roles to women.

The Ninth Circuit seemed largely skeptical of this argument, noting that the Supreme Court declined to hear a case challenging the registration requirement in 2021.

“There’s one Supreme Court, and we’re not it,” said U.S. Circuit Judge Anthony Johnstone, a Joe Biden appointee.

Johnstone questioned Justice Department attorney Sean Janda about whether the government agreed with Lewis that the decision in Rostker turned entirely on the combat restriction at the time.

“ The key point is just that figuring out what weight to give to those different considerations and what weight to give to any changed factual circumstances is a task for the Supreme Court, not a task for this court,” said Janda.

Government attorneys argued the male plaintiffs lack standing because they already registered and face no ongoing harm.

Lewis countered that the men could move soon, which required them to update their information with the Selective Service System, potentially causing injury.

But both Janda and U.S. Circuit Judge Eric Miller, a Donald Trump appointee, noted that the complaint didn’t show any of the men were actually likely to move.

“I think the fundamental problem is just that the complaint doesn’t do any work to identify any specific individuals or members of [the National Coalition for Men] who have standing on their own right,” Janda said.

The panel also sought clarification from the government about its understanding of what exactly the men’s rights group was seeking to accomplish.

“Is it a request to include women in the Selective Service System or a request to exclude men?” Johnstone asked the government attorney.

“I’m not entirely sure,” Janda responded.

Lewis explained that the purpose of the challenge is to correct disparities between men and women.

“At first glance, the exclusion of women in service seems like a protective measure, but it is a gilded house upon which the Military Selective Service Acts rest as a cage,” Lewis said. “The law is based upon these incorrect assumptions about men and women and their antiquated perceptions of their roles in society.”

The panel did not indicate when it would rule.

This is not the National Coalition for Men’s first challenge to the draft registration rules. After combat restrictions on women were lifted in 2013, the group sued, and a Texas federal judge ruled the men-only draft unconstitutional.

The Fifth Circuit reversed that ruling in 2020 and dismissed it, holding it couldn’t overrule Rostker v. Goldberg “unless directed to do so by the court itself.” The Supreme Court declined to take up the case in 2021, prompting the group to file a new challenge in California in 2024.

A lower court there found the plaintiffs had standing but again concluded that Rostker remains a binding precedent.

A 2020 report from a congressionally mandated commission recommended expanding draft registration to include women. The following year, congressional armed service committees voted to add women to the draft registration system. However, the provision faced backlash and was ultimately dropped.