Refusal this week by the Supreme Court to hear a challenge to the military’s men-only draft rule is the right call. As the court said, this is a policy decision that belongs with Congress, and in fact, lawmakers are discussing legislation to include women in the draft.
Requiring women to register for the draft is a step Congress should take.
The military has opened fully to women, including combat roles, and that equal opportunity should come with equal sacrifice.
The National Coalition for Men sought to overturn a 1981 decision that held only men be required to enlist in the draft on their 18th birthday. This decision, Rostker v. Goldberg, was grounded in the fact that women were not allowed in combat roles. But in the 39 years since, women have been included in every part of the military, including special operation roles.
The Coalition for Men is represented by the American Civil Liberties Union, and in court documents the groups argue the male-only requirement “is one of the last sex-based classifications in federal law.”
“It imposes selective burdens on men, reinforces the notion that women are not full and equal citizens, and perpetuates stereotypes about men’s and women’s capabilities,” the petition said.
The ACLU said in a statement that it was not asking the court to declare women should be included in the Selective Service, but to say that a male-only requirement is unconstitutional.
The Fifth Amendment prohibits discrimination on the basis of sex except for an “exceedingly persuasive justification,” which this is not.
Justice Sonia Sotomayor explained her vote by citing a congressional commission that was tasked in 2017 with investigating the Selective Service and the role of women.
The National Commission on Military, National, and Public Service released its final report in March 2020, and recommended, among other things, that Congress “eliminate male-only registration and expand draft eligibility to all individuals of the applicable age cohort.”
Sotomayor said the High Court will defer to Congress.
“It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act,” Sotomayor wrote, with Justices Breyer and Kavanaugh signing on. “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.”
The justice is right. Since Congress has already invested time and funding into finding an answer, it should be allowed to conclude the process before the judicial branch weighs in on the constitutionality.
The Biden administration has asked the court to give Congress time to decide. Acting Solicitor General Elizabeth Prelogar said a decision from the court would be “premature,” and that precedent calls for deference to Congress on military issues.
So Congress should do its assigned job with urgency to assure the government asks no more of its male citizens than of its female ones. Again, both are guaranteed equal rights, and both must accept equal responsibility for defending those rights.
— THE DETROIT NEWS