The project without women is left to Congress

WASHINGTON – The Supreme Court on Monday refused to hear a challenge to a federal law that only requires men to register for military service.

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As is the custom of the court, he gave no reason to dismiss the case. But three justices released a statement saying Congress should be given more time to consider what they have recognized to be a significant legal issue.

“It remains to be seen, of course, whether Congress will end gender-based registration under the Selective Military Service Act,” Judge Sonia Sotomayor wrote in a statement, joined by the judges. Stephen Breyer and Brett Kavanaugh. “But at least for now, the court’s long-standing deference to Congress on matters of national defense and military affairs warns against granting a review while Congress actively assesses the matter. . “

The requirement is one of the last gender-based distinctions in federal law, a distinction the challengers say cannot be justified now that women are allowed to serve in all roles in the military, including the ground combat. Unlike men, however, they are not required to register with the Selective Service System, the government agency that maintains a database of Americans who would be eligible for the project if it were reinstated.

Unequal treatment “imposes selective burdens on men, reinforces the idea that women are not full and equal citizens and perpetuates stereotypes about the capabilities of men and women,” wrote lawyers for the ‘American Civil Liberties Union in a petition on behalf of two men who were required to join and the National Coalition for Men.

In 1981, in Rostker v. Goldberg, the Supreme Court dismissed a sex discrimination challenge against the registration requirement, ruling it was justified because women could not at the time serve in combat roles.

“Since women are excluded from combat service by law or military policy,” Judge William Rehnquist wrote for the majority, “men and women are simply not placed in the same way for the purposes of ‘a conscription or a registration for a conscription’.

On Monday, Sotomayor wrote that “the role of women in the military has changed dramatically since then.”

“Beginning in 1991,” she writes, “thousands of women served with distinction in a wide range of combat roles, from operating military aircraft and warships to participating in military missions. ‘ground infantry’.

The courts below agreed with this assessment.

In 2019, Justice Gray Miller of the U.S. District Court in Houston ruled that since women can now serve in combat, the requirement to register only men is no longer warranted. A three-judge unanimous panel of the 5th United States Court of Appeals in New Orleans agreed that “the factual basis for the Supreme Court’s review decision has changed.” But he said only the Supreme Court can overturn its own precedent.

The Trump administration has defended the various registration requirements in the court of appeals. The Biden administration urged the Supreme Court not to hear the case, National Coalition for Men v. Selective Service System, n ° 20-928, but it did not defend the constitutionality of the law. Instead, he asked the judges to give Congress more time to consider the matter.

Last year, a congressional committee concluded that extending the registration requirement to women was “a necessary – and late – step” which “signals that men and women are valued for their contributions to advocacy. the nation “. This echoed the recommendations of military leaders. But Congress, which has been studying the issue for a long time, has yet to act.


The government hasn’t recruited anyone since the Vietnam War, and there is no reason to believe that will change. The challengers said this was a reason for the court to act now, before a crisis struck.

“If the court declares the registration requirement for men unconstitutional,” their brief said, “Congress has considerable leeway in deciding how to respond. It could require anyone between the ages of 18 and 26, regardless of gender, registers; this could negate the registration requirement entirely; or he could take an entirely new approach, such as replacing the “registration requirement” with a more national service requirement. large.

Ria Tabacco Mar, director of the women’s rights project of the American Civil Liberties Union, who had urged the court to take up the matter, said requiring men to register imposes a “serious burden on men which is not imposed on women”.

Men who do not register may lose their eligibility for student loans and public service jobs, and failure to register is also a felony punishable by a fine of up to $ 250,000 and up to five years. from prison. Eight states do not allow men to enroll in public universities without registering.

But Tabacco Mar said the men’s requirement does more than that.

“It also sends a hugely damaging message that women are less able than men to serve their country in this particular way and, conversely, that men are less able than women to stay at home as caregivers in such a way. armed conflict, ”said Mar, who represents the National Coalition For Men and the two men who challenged the law. “We believe these stereotypes demean both men and women.”

Even though the project is never used again, maintaining the requirement sends a “really damaging message,” she said. On Monday, she urged Congress in a statement to “update the law either by requiring everyone to register for the project, regardless of gender, or by not forcing anyone to register.”

A group of retired military officers, along with the Center for Military Readiness, urged the court to decline the review, saying the 1981 precedent was strong.

The brief said Congress rather than the court should decide who should register. He added that the challengers “also fail to address the elephant in the room: the men, as a group, are stronger, bigger, faster, and have greater stamina than the women as a group. group”.

Another group of retired military officers – including Michael Hayden, who headed both the CIA and the National Security Agency; Stanley McChrystal, a former commander in Afghanistan; and Claudia Kennedy, the first woman to become a three-star general in the military – urged the court to hear the case.

“The inclusion of women in selective service would double the pool of candidates available for editorial staff,” their brief said, “enhancing the overall quality of the enlisted force and enabling the nation to better meet its military needs.”

Tabacco Mar said she was disappointed with the Supreme Court’s decision not to hear the case and that she hoped Congress would intervene.

Information for this article was provided by Adam Liptak of the New York Times and Jessica Gresko of the Associated Press.

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