A member of the National Guard will patrol the steps of the Supreme Court on Monday, February 8, 2021.
Tom Williams | CQ Roll Call, Inc. | Getty Images
The Supreme Court said Monday it would not hear an appeal from men challenging male-only registration as it was a matter of gender discrimination.
The court dismissed the challenge, filed by the National Coalition for Men and two men, in an order with no apparent dissent.
In a statement, Judge Sonia Sotomayor said she agreed with the court’s decision to withhold the case as Congress could soon apply registration to women anyway. The National Election Service Act stipulates that men must register for compulsory military service at the age of 18.
“It remains to be seen, of course, whether Congress will end gender registration under the Military Selective Service Act,” Sotomayor wrote. “But for now, at least, the Court’s longstanding deference to Congress on national defense and military matters warns against granting a review while Congress is actively considering the issue.”
Sotomayor’s declaration was also signed by Judges Stephen Breyer and Brett Kavanaugh. It cited a report by the National Commission on the Military, National and Civil Service last year calling for the elimination of male-only registration.
The statement also alluded to recent comments from Senator Jack Reed, DR.I., who chairs the Armed Forces Committee, saying he hoped to include gender-neutral registration in upcoming legislation.
The Supreme Court upheld male-only registration in the Rostker v. Goldberg case of 1981. At the time, the court argued that women “are not needed if drafted” because of exclusion from the fight.
The National Coalition for Men asked the court to overturn the 1981 ruling, now that women can serve in combat roles, citing the 5th Amendment. The US Department of Defense lifted a ban on women in combat in 2013. As of 2015, women have been able to serve in any role in the U.S. armed forces that is open to men.
“Registration is one of the last gender-specific classifications in federal law,” wrote Ria Tabacco Mar, an attorney for the American Civil Liberties Union, which represents the men’s coalition, in court records. “It imposes selective burdens on men, strengthens the idea that women are not full and equal citizens, and perpetuates stereotypes about the abilities of men and women.”
In a statement Monday, Mar said her clients were “disappointed that the Supreme Court has allowed one of the last examples of overt sexual discrimination in federal law.”
“We are calling on Congress to update the law by either asking everyone, regardless of gender, to register for the draft, or by not asking anyone to register,” she said.