The U.S. Supreme Court on Monday declined to consider the constitutionality of the male-only draft in a case that could force young women to register for the draft and be sent to war.
The justices turned down an appeal of a 2020 decision by the U.S. Fifth Circuit Court of Appeals, which had declared the male-only draft constitutional. In that decision, the Fifth Circuit said it was bound by a 1981 Supreme Court decision that had upheld the gender-based registration requirement.
At issue is the requirement by the Selective Service System that men, upon reaching age 18, register with the agency within 30 days. Selective Service keeps a list of all men ages 18-25 eligible for the draft.
The National Coalition for Men brought the lawsuit, although the American Civil Liberties Union’s Women’s Rights Project also urged the Supreme Court to take up the case.
The issue has grown more contentious in recent years because the Supreme Court’s legal reasoning from 1981 has been undermined by the military. In 1981, the Supreme Court, in a 6-3 decision, ruled that men and women were not “similarly situated” for the draft because women were not eligible for combat roles. But in 2015, the Pentagon opened up all combat roles for women.
In Monday’s order from the Supreme Court, three justices – Sonia Sotomayor, Stephen Breyer and Brett Kavanaugh – indicated in a three-page statement they believe a male-only draft is unconstitutional.
“The role of women in the military has changed dramatically since then,” Sotomayor wrote, referencing 1981. Breyer and Kavanaugh joined her statement.
“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 2016, when the issue was also being discussed, Concerned Women for America issued a statement supporting a male-only draft.
“We firmly believe in the equality of men and women, but that does not require us to ignore the physical differences and unique risks to women in combat particularly in the case of capture,” the statement said. “The female draft discussion should revolve around combat readiness, efficiency, and national security, and weeding through applicants that are overwhelmingly biologically unable to meet combat standards would be a logistical nightmare and would force the lowering of combat standards.
“We strongly support the heroic, capable, and honorable women who chose and will choose to serve our country in the military,” Concerned Women for America added. “However, this issue centers around whether or not women are to be forced to register to serve in tip-of-spear combat roles should our nation reinstate the draft. Forcing women to serve in combat against their will is a deep departure in U.S. policy. Uncle Sam needs to keep his hands off of our daughters.”
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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.