The Supreme Court on Monday declined to hear a challenge to the men-only draft registration rule, but some of the justices raised doubts about the constitutionality of the policy.
The Court did not give reasons for rejecting the appeal, as is typical of such orders. But in a separate statement for three justices running the ideological gamut, Justice Sonia Sotomayor noted that Congress is weighing a change to the registration rules. The opinion is a signal that the Court could revisit the issue if a legislative change is not forthcoming.
"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," Sotomayor wrote, in an opinion joined by Justices Stephen Breyer and Brett Kavanaugh.
The National Coalition for Men and the American Civil Liberties Union challenged the draft rule on constitutional grounds, arguing that it amounts to unlawful sex discrimination. The Biden administration made little attempt to defend the law in the Supreme Court. Instead, administration attorneys urged the justices to stay away from the issue because Congress is considering changes to registration policy. Monday's order seemed to vindicate the administration's strategy.
The Pentagon announced in 2015 that women would be fully integrated into ground combat forces, and it endorsed female draft registration in 2017. Congress created a blue ribbon commission to study the issue that in 2020 urged lawmakers to include women in draft registration.
Advocates of the change emphasize that the military would need to fill all its occupational specialties, like linguists or cyber specialists, in a mass-mobilization conflict. But some veterans continue to question the opening of combat ranks to women, particularly in elite infantry units like the Army Rangers.
Lawmakers from both parties have expressed support for amending the registration rules. Sen. Jack Reed (D., R.I.), chairman of the Senate Armed Services Committee, said during a March hearing that a gender-neutral rule could be incorporated into the annual defense authorization bill.
Andre Segura of the ACLU of Texas, the state where Monday's case originated, said the dispute is part of the broader social clash over sex and gender identity.
"Government entities, like school districts, still rely on outdated notions of gender to discriminate against LGBTQ people and anyone who doesn't fit the stereotypical notion of what a man or a woman should be like," Segura said. "We can't allow this to continue in any forum, including the military."
The case is No. 20-928 National Coalition for Men v. Selective Service System.
Published under: ACLU , Military , Sonia Sotomayor , Supreme Court , Women