Court declines suit alleging male-only military draft discriminatory

by John Kruzel - 06/07/21 9:48 AM ET

The Supreme Court on Monday turned down a lawsuit alleging that the United States’ all-male military draft amounts to unconstitutional discrimination on the basis of sex.

The challenge, brought by a men’s rights group, claimed that the male-only draft is unlawful in light of a 2013 policy shift by the Defense Department that opened up combat roles to women.

The Biden administration had asked justices to turn away the bid since lawmakers are actively considering the scope of the national registration requirement and noted that the court previously said the issue was better suited to Congress than judges.

Three justices wrote to express agreement with the court’s decision to decline the case. They cited the Biden administration’s rationale but seemed to indicate that they would be open to hearing the case if Congress fails to act.

“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,” wrote Justice Sonia Sotomayor, who was joined by Justices Stephen Breyer and Brett Kavanaugh.

Military conditions have changed dramatically since the court upheld the draft law in a 1981 decision in the case of Rostker v. Goldberg. The court at the time ruled 6-3 that the Military Selective Service Act’s male-only requirement was justified because of women’s exclusion from combat roles.

The challengers in the new case, backed by the American Civil Liberties Union (ACLU), had argued that the elimination of sex-based barriers in the military without a concurrent broadening of the draft to include women created unjustified sex-based discrimination against men.

The ACLU expressed disappointment over the court’s move on Monday.

“Requiring only men to register for the draft reflects the outdated and sexist notion that women are less fit to serve in the military and that men are less able to stay home as caregivers in the event of an armed conflict,” said Ria Tabacco Mar, director of the ACLU Women’s Rights Project. “Such stereotypes demean both men and women.”

A federal judge in Houston ruled in 2019 for the challengers, including two men and a group called the National Coalition for Men. A three-judge panel of the U.S. Court of Appeals for the 5th Circuit reversed that ruling last year, which prompted the challengers’ unsuccessful appeal to the Supreme Court.

The case is National Coalition For Men v. Selective Service System, No. 20-928.

Updated at 10:28 a.m.

Tags Brett Kavanaugh discrimination lawsuit Military Draft Sonia Sotomayor Stephen Breyer Supreme Court