Supreme Court declines to hear case questioning whether women must also register for the draft

WASHINGTON – The Supreme Court declined Monday to hear an appeal questioning whether the requirement that men – and not women – register for the military draft is constitutional in a case that challenged one of the last sex-based classifications in federal law.

Associate Justice Sonia Sotomayor wrote that the decision is for Congress to make – for now.  

"It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act," Sotomayor wrote in a statement joined by Associate Justices Stephen Breyer and Brett Kavanaugh. "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."

Forty years ago, the Supreme Court upheld the constitutionality of requiring men – and only men – to register for the draft through the Selective Service System because, the justices reasoned at the time, the purpose of a draft is to build a pool of combat troops.

Back then, that meant men. Not any longer. 

Prep for the polls: See who is running for president and compare where they stand on key issues in our Voter Guide

The Department of Defense formally lifted the ban on women in combat in 2015. And so the question before the court was whether a male-only registration requirement violates the Constitution's guarantees of equal protection and due process. 

Sotomayor's statement Monday noted that "thousands of women have served with distinction" in a wide range of combat roles, including "boots-on-the-ground" infantry missions.

"Requiring only men to register for the draft reflects the outdated and sexist notion that women are less fit to serve in the military and that men are less able to stay home as caregivers in the event of an armed conflict," said Ria Tabacco Mar, director of the Women’s Rights Project at the American Civil Liberties Union. "Such stereotypes demean both men and women."

The modern registration system was adopted during World War I, according to court documents. The draft inducted nearly 3 million men into the military for World War I, more than 10 million for World War II, 1.5 million for the Korean War and nearly 2 million for Vietnam, according to the nonpartisan Congressional Research Service.  

The Selective Service System, a federal agency, told the nation's highest court that reconsidering male-only draft registration would be "premature." Its attorneys argued that the court's earlier case, Rostker v. Goldberg, "made clear that the court should defer to Congress."

In the section of the agency's website frequently asked questions, the second question is "Why aren't women required to register?" The answer, in the agency's words, is that the Military Selective Service Act, enacted in 1948, authorizes only men to sign up. 

A federal district court ruled for the male plaintiffs in the case, but the New Orleans-based U.S. Court of Appeals for the 5th Circuit reversed that decision, citing the Supreme Court's earlier precedent in the Rostker case. 

Men who knowingly fail to register for the draft could face up to five years in prison and up to $250,000 in fines. They also are ineligible for federal student aid.   

Congress created a commission to study the question in 2016 and, last year, that panel recommended eliminating male-only draft registration. The Senate Armed Services Committee held a hearing in March that dealt with the draft and whether women should also be required to register – but the appetite for the change is far from certain.