DOJ asks Supreme Court to decline to hear suit claiming all-male draft is discriminatory

The Biden administration has asked the Supreme Court to decline to hear a lawsuit alleging that America’s all-male military draft amounts to unconstitutional discrimination on the basis of sex.

In a 26-page brief, the Department of Justice on Wednesday urged the justices to turn down the petition because lawmakers are “actively considering” the scope of the national registration requirement, noting that the court previously said the issue was better suited to Congress than judges.

At issue in the case is whether an all-male draft remains legally sound after the Defense Department in 2013 lifted the ban on women serving in combat roles. 

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 ruled 6-3 that the Military Selective Service Act’s male-only requirement was justified because of women’s exclusion from combat roles.

Petitioners in the current case, backed by the American Civil Liberties Union, argue 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 justices are likely to discuss the petition — as well as the Biden administration’s opposition to them hearing the case — at a private conference in coming weeks or months. Four or more justices must agree to hear the dispute for a petition to be granted.

A federal judge in Houston ruled in 2019 for the challengers, 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, prompting the challengers appeal to the Supreme Court.

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