Supreme Court Won’t Hear Lawsuit Claiming Military Draft Discriminates Against Men

Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington on April 23, 2021. Erin Schaff/Pool/AFP via Getty Images

The Supreme Court on June 7 declined to hear a challenge to the requirement that only males can register for the military draft.

The order (pdf) suggests that only men will still be required to register under the Selective Service System.

A group called the National Coalition for Men, a men’s rights group, filed the challenge, arguing that the male-only draft amounts to unconstitutional discrimination on the basis of sex. The group highlighted the 2013 Department of Defense order that allowed women to serve in military combat roles.

Justice Sonia Sotomayor wrote, in explaining why the challenge won’t be heard: “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.” She was joined by Justices Stephen Breyer and Brett Kavanaugh.

Sotomayor noted that the Military Selective Service Act of 1948 “requires men, and only men ... to register for the draft upon turning 18” and said the Supreme Court in 1981 “upheld the Act’s gender-based registration requirement against an equal protection challenge, citing the fact that women were ‘excluded from combat’ roles and hence ‘would not be needed in the event of a draft.’”

The American Civil Liberties Union (ACLU), in a statement, expressed disappointment over the Supreme Court’s move to not hear the case.

“Requiring only men to register for the draft reflects the outdated and sexist notion that women are less fit to serve in the military and that men are less able to stay home as caregivers in the event of an armed conflict,“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, in a June 7 statement. ”Such stereotypes demean both men and women.”

The ACLU’s lawyers had written (pdf) to the Supreme Court in a petition on behalf of two men who were required to register for the draft and the National Coalition for Men that the alleged unequal treatment “imposes selective burdens on men.”

After 1973, the United States switched to an all-volunteer military force. The draft, however, is still available for activation should the federal government require it. The Selective Service Agency requires that all men register for the draft within 30 days of their 18th birthday.

The Biden administration called on the Supreme Court to not take up the case because Congress could, in the meantime, change the law.

“Any reconsideration of the constitutionality of the male-only registration requirement would be premature at this time,” Acting Solicitor General Elizabeth Prelogar said in arguments to the court. “Congress is actively considering the scope of the registration requirement.”

Prelogar had argued that previous Supreme Court rulings have stipulated that the court should defer to Congress when it applies.

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