Supreme Court Asked To Review Constitutionality of Current Male-Only Draft Registration Requirement

Today the National Coalition For Men, a men’s rights organization represented by the American Civil Liberties Union, petitioned the U.S. Supreme Court to review the Constitutionality – now that women are allowed in all military combat assignments – of the law which requires men but not women to register with the Selective Service System for a possible military draft.

I’ve been tracking this case up and down through the lower courts since 2015, and I attended the oral argument last year before the 5th Circuit Court of Appeals in New Orleans that led to the ruling that the Supreme Court is now being asked to review. Today’s filing of a petition for certiorari is no surprise. But for those who haven’t been following the issue closely, it raises questions about the seeming strange bedfellows – a women’s rights project defending a “men’s rights” group and its members? – and the future of Selective Service registration.

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Good News and Bad News for the Military Draft in 2021

Applicants for Federal financial aid for higher education will no longer be required to have registered with the Selective Service System for a possible military draft or answer questions about their Selective Service registration status or compliance.

Among the provisions included in the 2000+ page coronavirus pandemic relief and Consolidated Appropriations Act, 2021, which was signed into law by President Trump on Sunday, is a section (Title VII, Section 701 et seq.) which effectively repeals the 1982 "Solomon Amendment" that has required men to have registered for the draft in order to be eligible for Federal student grants or loans. The new law also requires the Department of Education to remove the questions about Selective Service registration from the FAFSA student aid application form.

This section of the “Consolidated Appropriations Act” is one of many entirely unrelated sections, most of which had been pending in Congress as separate bills but had not been acted on, that were tacked onto the “must-pass” pandemic relief and government funding bill in last-minute, closed-door wheeling and dealing by Congressional leaders.

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Draft Registration on Track for 2021 Debate in Congress and Supreme Court

The military draft is still on the back burner. But the issue – and specifically whether to (finally) end draft registration or try to expand it to young women as well as young men – is on track to be debated in Congress and quite possibly the Supreme Court in 2021.

Here’s some of what’s happened recently:

A new documentary film about draft resistance during the U.S. war in Indochina, The Boys Who Said No, opens today online, with streaming throughout the US The film features archival footage of, and recent interviews with, David Harris, Muhammad Ali, Joan Baez, Dr. Martin Luther King, Jr., and many others whose names are less well known but whose actions were and are no less significant. Showings and discussions about the film are a great opportunity to let people know that the draft is still an issue today.

In an interview with a an organization of military officers, Presidential candidate Joe Biden has announced that he supports expanding the Selective Service registration requirement to women.

The deadline for an appeal to the Supreme Court of the decision on the Constitutionality of requiring men but not women to register for the draft is January 11, 2021. The plaintiffs are still deciding whether to appeal, but there’s a good chance the Supreme Court would decide to hear the case, putting more pressure on Congress to consider the issue.

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Court of Appeals Overturns Ruling That Male-Only Draft Registration Requirement Is Unconstitutional

Thursday a 3-judge panel of the 5th Circuit Court of Appeals in New Orleans issued a decision overturning an earlier ruling by a U.S. District Court in Houston that the current Federal law requiring men but not women to register with the Selective Service System for a possible military draft is unconstitutional:

Significantly, and contrary to some of the early reports on today’s decision, the Court of Appeals did not find that the current male-only draft registration requirement is Constitutional. The Court of Appeals did not reach that question. The Court of Appeals ruled that because the Supreme Court ruled on this question in 1981 in the case of Rostker v. Goldberg, only the Supreme Court could reconsider or reverse that decision, even if the facts on which that decision was based (the exclusion of women from military combat assignments, which ended in 2015) have changed.

The Court of Appeals reversed the District Court’s decision solely on the basis that neither the District Court nor the Court of Appeals has the authority to overturn Supreme Court precedent, and that finding that the facts are different today than in 1981 would amount to overturning the Supreme Court’s legal findings.

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Congress May Act Soon on Selective Service

Despite the COVID-19 pandemic, Congress could soon consider whether to end Selective Service registration or try to expand it to women. It’s critically important to opponents of the draft and war to (1) contact your Representative and Senators and (2) educate, agitate, and organize now to finalize the victory of decades of resistance to draft registration.

Here’s a leaflet about what’s happening: and some things you can do today. CODEPINK is hosting a webinar, Draft Women? Hell No!, on Tuesday, May 26th, 8-9 p.m. EDT, and is also part of this podcast on women and the draft produced by Courage To Resist. Speakers are available for groups or classes.

Almost all Congressional business not related to the pandemic has been sidelined since the release of the National Commission on Military, National, and Public Service (NCMNPS) report in late March, which recommended that Congress expand draft registration to women. (Details of recommendations.)

Separate bills are now pending in Congress to end draft registration and abolish the Selective Service System (H.R. 5492) or to implement the NCMNPS recommendations including requiring women to register for the draft (H.R. 6415). No action on either of these bills is likely any time soon.

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National Commission Recommends Extending Draft Registration to Women

This morning the National Commission on Military, National, and Public Service (NCMNPS) released its final report, recommending that Congress amend the Military Selective Service Act to require that young women, as well as young men, register for the draft when they reach 18 years of age, and inform the Selective Service System each time they change their address until their 26th birthday.

In my testimony to the NCMNPS in April 2019, I told the Commissioners:

Any proposal that includes a compulsory element is a naïve fantasy unless it includes a credible enforcement plan and budget…. How much are you prepared to spend, and how much of a police state are you prepared to set up, to round up the millions of current draft registration law violators or enforce a draft?

The Commission’s recommendations with respect to Selective Service registration are just such a naïve fantasy, completely unfeasible and with no foundation in research or reality. The Commission kept its head firmly in the sand, carefully avoiding any inquiry into whether or how the current (unenforced and widely violated) registration requirement for men, much less an expanded registration requirement applicable also to women, could be enforced.

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