“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.”
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