Report: Supreme Court to Decide on Hearing Suit Declaring All-Male Draft Discriminatory

The Supreme Court will likely decide this week whether to hear a petition challenging whether an all-male draft instituted in 1981 remains legally sound after the Department of Defense in 2013 lifted the ban on women serving in combat roles, reports CNN.

A men’s rights organization, backed by the American Civil Liberties Union, argues that the federal requirement that men register for the Selective Service “is unlawful sex discrimination” and that the requirement “has no legitimate purpose and cannot withstand the exacting scrutiny sex-based laws require.”

“By burdening only men while excluding women, the Military Service Act sends a message that women are not vital to the defense of the country,” the suit states.

The Biden administration in March asked the Supreme Court to turn down the petition because lawmakers are “actively considering” the scope of the national registration requirement, citing a report released in March 2020 by the National Commission on Military and Public Service recommending that Congress eliminate male-only registration and expand draft eligibility to all individuals “of the applicable age.”

“Congress’s attention to the question may soon eliminate any need for the Court to grapple with that constitutional question,” Acting Solicitor General Elizabeth Prelogar told the justices at the time.

A group of retired military officers are supporting the ACLU’s efforts, including Gen. Michael Hayden, Gen. Stanley McChrystal, and Lt. Gen. Claudia Kennedy.

“Our armed forces draw from the strength of the entire nation, not only its men,” Lindsay Harrison, the group’s lawyer, told CNN.

“Women graduate from the Nation’s top service academies, complete the most challenging combat training programs, deploy overseas, serve alongside men and integrate into basic combat teams, including infantry. … The draft if ever again instated, ought to reflect that same judgment,” she added.

A federal district court judge in Houston in 2019 declared the policy unconstitutional but the Fifth Circuit a year later found that the district court’s judgment “directly contradicts” Rostker v. Goldberg.

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