Group Urges Supreme Court Not to Hear Challenge to Military Draft

A military honor guard walks down the street to open the Provo Freedom Festival Parade in Provo, Utah, on July 4, 2018. (George Frey/Getty Images)

A military-readiness group is urging the Supreme Court not to take up a petition from a men’s rights group that asks the court to strike down the law that authorizes military conscription solely for men as unconstitutional.

The case is National Coalition for Men v. Selective Service System, court file 20-928.

Based in San Diego, the National Coalition for Men (NCFM) was “founded in 1977 upon the realization that men needed a unified voice in addressing issues concerning men and boys,” according to its website.

The NCFM is represented in the case by the American Civil Liberties Union (ACLU), which argues that ending the men-only registration requirement would undo one of the last examples of overt sex discrimination in federal law after the Supreme Court allowed gay marriage and found last year that employment discrimination against gays and transgender individuals was illegal.

In 1981, the Supreme Court ruled in Rostker v. Goldberg that the Military Selective Service Act, under which men, but not women, are required to register for the draft, survived constitutional scrutiny because women at that time were categorically prohibited from serving in combat roles. Because the primary purpose of registration was to replace combat troops, the court stated, “the existence of the combat restrictions clearly indicates the basis for Congress’ decision to exempt women from registration.”

Although the Department of Defense rescinded the ban on women in combat in 2013, the obligation to register for the draft remains limited to men.

“The question presented is whether, in light of the Department of Defense having lifted the ban on women in combat, this Court should overrule Rostker and hold that the federal requirement that men but not women register for the Selective Service ... violates the right to equal protection guaranteed by the Fifth Amendment,” NCFM stated in its petition.

But the Michigan-based Center for Military Readiness (CMR) argues in a friend-of-the-court brief filed March 12 that the Supreme Court should turn away NCFM’s petition because Congress, not the courts, is constitutionally authorized to set military policy.

“Our point is the courts don’t get to make those decisions—members of the Congress have the constitutional responsibility to make policy for the military, according to Article 1, Section 8 of the Constitution,” CMR President Elaine Donnelly told The Epoch Times in an interview.

“We support the Selective Service System as an insurance policy in the case of a catastrophic national emergency.”

Discussions about the role of the Selective Service System are currently taking place in Congress. After the National Commission on Military, National, and Public Service completed its work in 2020, the Senate Armed Services Committee held a hearing March 11 on the commission’s final report.

CMR’s Supreme Court brief acknowledges that some women have proved themselves capable of meeting the high standards that combat demands and previous policies regarding women in combat billets have been repealed, but “the physiological differences between men and women have not been repealed.”

The brief cites several key points of information resulting from a thorough 3-year study that the Marine Corps conducted from 2012 to 2015. During nine months of field exercises simulating combat requirements that were monitored by the University of Pittsburgh, the Marine Corps study objectively compared the performance of all-male and mixed-sex units.

A 2015 summary of the findings reported, “All-male squads, teams, and crews demonstrated higher performance levels on 69% of tasks evaluated (93 of 134) as compared to gender-integrated squads, teams, and crews.”

CMR argues that the purpose of a military draft, which could be reinstated during a time of catastrophic national emergency, would be to provide a ready pool of combat replacements. Drafting “large numbers of women who cannot meet [combat] standards will hinder the process of providing timely combat replacements.”

The ACLU rejects that reasoning.

“Like many laws that appear to benefit women, men-only registration harms women, too,” Ria Tabacco Mar, counsel of record for NCFM and director of the ACLU Women’s Rights Project, said in a statement.

“The Military Selective Service Act is based on outdated and sexist notions of women’s and men’s abilities to serve in the military, regardless of individual ability. Limiting registration to men treats women as unfit for this obligation of citizenship and reflects the outmoded belief that men aren’t qualified to be caregivers in the event of a draft. Such sex stereotypes have no place in our federal law.”