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Supreme Court declines to hear lawsuit challenging male-only draft

Three justices said the court's longstanding deference to Congress on military issues cautions against taking the case while lawmakers are considering changing the law.
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The Supreme Court declined Monday to consider the constitutionality of a federal law requiring men, but not women, to register for the military draft when they turn 18.

As is its usual practice, the court didn't say why it wouldn't take the case. But three justices, Stephen Breyer, Sonia Sotomayor, and Brett Kavanaugh, said the court's longstanding deference to Congress on military issues cautions against taking the case while lawmakers are considering whether to change the law.

A federal judge in Texas said the law violated the Constitution's guarantee of equal protection. But a federal appeals court overturned the ruling, concluding that it was bound by a 1981 Supreme Court decision upholding the men-only requirement.

The U.S. switched to an all-volunteer force in 1973, but the draft remains on the books, ready to be activated if needed in wartime. The Selective Service Act requires all men to register for the draft within 30 days of their 18th birthday. Failure to do so can result in prosecution and denial of federal student loans.

The National Coalition for Men and two young men who registered said the military has changed so much since 1981 that the justices should reconsider their earlier ruling. Forty years ago, women were banned from serving in combat roles. But in 2015, the Defense Department opened all military roles, units, and schools to women.

A national commission appointed to study the issue concluded in 2017 that excluding women from registering for the draft sent a message that they "are not vital to the defense of the country."

The American Civil Liberties Union, representing the plaintiffs, told the Supreme Court that the decision by Congress to exclude women from the draft was rooted in archaic stereotypes about women's roles outside the home.

In a friend of court brief, a group of retired senior military officers, including former National Security Agency director Michael Hayden, said women now constitute 17 percent of the armed forces, roughly the same percentage of women in the New York Police Department.

"Women graduate from the nation's top service academies, complete the most challenging combat training programs, deploy overseas, serve alongside men, and integrate into basic combat teams, including in the infantry," their brief said.

But the Biden administration urged the court not to take up the issue — at least not now, when Congress might change the law.

"Any reconsideration of the constitutionality of the male only registration requirement would be premature at this time," said the acting solicitor general, Elizabeth Prelogar. "Congress is actively considering the scope of the registration requirement."

Previous Supreme Court rulings have said that "the court should defer to Congress where possible in this sensitive military context," she wrote in the government's legal brief.