(AP) — The Supreme Court
is being asked to rule on whether the government is discriminating against men by requiring them to register for the draft
when they reach the age of 18.
The question of whether it is unconstitutional to require men but not women
to register may appear to have little practical impact; the last time there was a draft was during the Vietnam War, and the military
has been all-volunteer since then. However, the registration requirement is one of the few remaining places where federal law treats men and women differently, and women's groups are among those who oppose it.
The Supreme Court could decide whether to hear a case involving the Military Selective Service Act, which requires men to register for the draft, as soon as Monday.
The director of the American Civil Liberties Union's Women's Rights Project, Ria Tabacco Mar, who is urging the court to hear the case, claims that requiring men to register places a "significant burden on men that is not imposed on women."
Men who do not register may lose their eligibility for student loans and civil service jobs
, and failing to register is also a felony punishable by a fine of up to $250,000 and up to five years in prison
, according to Tabacco Mar.
“It also sends a tremendously harmful message that women are less fit than men to serve their country in this particular way, and conversely, men are less fit than women to stay at home as caregivers in the event of an armed conflict,” she added.
Even if the draft is never used again, maintaining the men-only requirement sends a "really damaging message," according to Tabacco Mar, who represents the National Coalition For Men and two individual men who are challenging the law.
Among those urging the court to hear the case are a group of retired senior military officers and the National Organization for Women.
If the court agrees to hear the case, it will not decide whether women must register, but rather whether the current system is constitutional. If it is not, Congress
will have to decide how to respond, either by passing legislation requiring everyone to register or deciding that registration is no longer necessary.
The issue of who has to register for the draft has been before the court before. In 1981, the court voted 6-3 to uphold the men-only registration requirement. At the time, the decision was something of an outlier because the court was regularly invalidating gender-based distinctions in other areas of the law. Many of those cases were brought by the founding director of the ACLU
’s Women’s Rights Project.
When the Supreme Court last considered the Military Selective Service Act, then-Justice William Rehnquist explained that the purpose of registration was to “prepare for a draft of combat troops,” and that because women could not serve in combat, the law did not constitute unlawful sex
discrimination that violated the Constitution.
However, military policy has shifted. In 2013, the Department of Defense lifted the ban on women serving in combat, and two years later, the department announced that all military roles would be open to women without exception.
A congressional commission
concluded last year that the “time is right” to extend the registration requirement to women. “The current disparate treatment of women unacceptably excludes women from a fundamental civic obligation and reinforces gender stereotypes about the role of women, undermining national security
,” the commission said in a report.
The Biden administration
is urging the Supreme Court not to hear the case and instead to let Congress deal
with the issue. Administration lawyers wrote in a brief that any “reconsideration of the constitutionality of the male-only registration requirement... would be premature at this time” because Congress is “actively considering” it.
The Selective Service System, which oversees registration, stated in a statement that it does not comment on pending litigation but is “capable of performing whatever mission Congress should mandate.”
If the court agrees to hear the case, arguments would not begin until the fall, after the court's summer recess, and the court already has several high-profile cases on its docket, including a major challenge to abortion rights
and an appeal to broaden gun
National Coalition For Men v. Selective Service System, 20-928, is the case concerning the draft.