Is It Illegal To Not Register For The Draft

Does Requiring Only Men to Register for the Draft Violate the Constitution?

The Supreme Court has been asked to decide whether one of the last sex-based distinctions in federal law should survive now that women can serve in combat.

Credit... John Moore/Getty Images

Published March 22, 2021 Updated June 7, 2021

WASHINGTON — A government ad urging young men to register for the draft packs a lot of stereotypes into 30 seconds. A mother, drying dishes in her kitchen, nags her son, who has just turned 18, to "just do it now before you forget."

Her son, skinny and squeaky, pulls out his phone, registers and is transformed into a buff, deep-voiced adult. "Johnny!" the mother exclaims, while his little sister looks on in amazement. "You're a man!"

Since 2016, women have been allowed to serve in every role in the military, including ground combat. Unlike men, though, they are not required to register with the Selective Service System, the government agency that produced the ad and maintains a database of Americans who would be eligible for the draft were it reinstated.

Almost all other sex-based distinctions in federal law have been eliminated, in no small part because of the pioneering work of Ruth Bader Ginsburg, who litigated women's rights cases in the Supreme Court before she joined it. But the requirement that only men must register for the draft remains.

The court will soon decide whether to hear a challenge to the requirement, in language that could have been drafted by Justice Ginsburg when she ran the Women's Rights Project at the American Civil Liberties Union.

"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," lawyers with the A.C.L.U. wrote in a petition on behalf of two men who were required to register and the National Coalition for Men.

Justice Ginsburg, who died in September, argued six cases in the Supreme Court. The first, Frontiero v. Richardson in 1973, also concerned the military. She persuaded the court that the Air Force's unequal treatment of the husbands of female officers, who were denied housing and medical benefits that the wives of male officers received automatically, violated equal protection principles.

Ria Tabacco Mar, who holds the position at the A.C.L.U. that Justice Ginsburg once had, said the Frontiero decision was proof that sex discrimination by the government without good reason should be unlawful in any part of society. Treating the military differently, she said, "would be a huge disservice to Justice Ginsburg's legacy and the jurisprudence she created."

But the challengers must reckon with another precedent. In 1981, in Rostker v. Goldberg, the Supreme Court rejected a sex-discrimination challenge to the registration requirement, reasoning that it was justified because women could not at that time serve in combat.

"Since women are excluded from combat service by statute or military policy," Justice William H. Rehnquist wrote for the majority, "men and women are simply not similarly situated for purposes of a draft or registration for a draft."

In 2019, Judge Gray H. Miller, of the Federal District Court in Houston, ruled that since women can now serve in combat, the men-only registration requirement was no longer justified. A unanimous three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, agreed that "the factual underpinning of the controlling Supreme Court decision has changed." But it said that only the Supreme Court could overrule its own precedent.

The Trump administration defended differing registration requirements in the appeals court. The Biden administration has twice sought extra time to respond to the petition seeking Supreme Court review in the case, National Coalition for Men v. Selective Service System, No. 20-928, and its brief is now due on April 14.

Last year, a congressional commission concluded that expanding the registration requirement to women was "a necessary — and overdue — step" that "signals that both men and women are valued for their contributions in defending the nation." That echoed recommendations from military leaders. But Congress, which has long been studying the question, has yet to act.

Men who fail to register can face harsh punishments, including criminal prosecution, denial of student loans and disqualification from citizenship. Eight states do not let men enroll in public universities unless they have registered.

The government has not drafted anyone since the Vietnam War, and there is no reason to think that will change. The challengers say that is a reason for the court to act now, before a crisis arises.

"Should the court declare the men-only registration requirement unconstitutional," their brief said, "Congress has considerable latitude to decide how to respond. It could require everyone between the ages of 18 and 26, regardless of sex, to register; it could rescind the registration requirement entirely; or it could adopt a new approach altogether, such as replacing" the registration requirement "with a more expansive national service requirement."

Several prominent retired military officers — including Michael V. Hayden, who directed both the C.I.A. and the National Security Agency; Stanley A. McChrystal, a former commander in Afghanistan; and Claudia J. Kennedy, the Army's first female three-star general — urged the court to hear the case and level the playing field.

"Including women in the Selective Service would double the pool of candidates available to draft," their supporting brief said, "raising the overall quality of the conscripted force and enabling the nation to better meet its military needs."

A second set of retired military officers, along with the Center for Military Readiness, took the opposite view. Among the retired officers was William K. Suter, who served as the Supreme Court's clerk for 22 years.

The brief said that Congress rather than the court should decide who must register. It added that the challengers "also fail to address the elephant in the room: Men, as a group, are stronger, bigger, faster and have greater endurance than women as a group."

Ms. Mar questioned the idea that women were less qualified to serve. "The notion that modern warfare depends on brute strength," she said, "is outdated and inaccurate."