The Supreme Court Should End Male-Only Selective Service Registration

The Military Selective Service Act requires essentially all males between the ages of 18 and 26 register with the Selective Service System, a federal agency, to facilitate their conscription in the event of a military draft. Men who fail to register or otherwise comply with the act may be fined, imprisoned, or denied federal benefits.¹ While males are still required to register for induction into military service, women have always been exempted from this registration process and not subject to the draft.

On 25 March 2020, the National Commission on Military, National, and Public Service released a report recommending that women be required to register with the Selective Service System and be included in any future draft. Now that women are eligible to serve in every combat role, recent court decisions have taken diverging views on whether the current male-only registration requirement is constitutional. In 2021, it is possible one of these challenges will be heard by the U.S. Supreme Court. Given the changes to women’s roles in the military, the court should overrule precedent and find that the federal requirement that only men register for Selective Services violates the right to equal protection guaranteed by the Fifth Amendment.²

The petitioners in National Coalition for Men v. Selective Service System argue that it does and have explicitly asked the Court to overturn Rostker v. Goldberg, a case decided in 1981 that found the male-only requirement constitutional. But needing the court to overturn precedent is a substantial bar to success. The general principle stare decisis—which translates “to stand by things decided”—is governed by several factors: a prior decision’s workability, whether it was well-reasoned, its age, and the reliance interests at stake.

Precedents

The 1863 Civil War Enrollment Act was the first U.S. national conscription law.³ In the 20th century, male registration for the draft was enacted in the Selective Service Acts of 1917 and 1948.⁴ But today’s registration process traces to the 1973 end to military conscription and then–Secretary of Defense Melvin R. Laird’s announcement of the creation of an all-volunteer force. The Selective Service registration requirement was terminated between 1975 and 1980, but reestablished later in 1980 following the Soviet Union’s invasion of Afghanistan. At that time, President Jimmy Carter urged Congress to permit the registration and conscription of women, but Congress declined to do so. Rostker v. Goldberg was the first major court case to address male-only registration.

In Rostker, the justices recognized that Congress is entitled to extremely wide deference, even if its actions might be deemed unconstitutional in a civilian context, when it legislates with regard to military affairs. The Rostker decision also rested on women’s ineligibility for combat; they were “simply not similarly situated for purposes of a draft or registration for a draft.” Having found that men and women were differently situated, and since the purpose of registration is to prepare for the draft of combat troops, the Supreme Court determined that the classification was “not only sufficiently but also closely related to” that purpose. As a result, the Court held that the sex-based classification drawn by the act, even though facially discriminatory, was “not invidious, but rather realistically reflect[ed] the fact that the sexes [were] not similarly situated.”

Subsequent courts also have been unwilling to declare the act unconstitutional. After all, it is the duty of the court to say what the law is, not make the law, and if Congress believes women should register, it could simply pass a law saying so.⁵ But it has not. Two decades after Rostker, Schwartz v. Brodsky (2003) involved a group of male and female Massachusetts students who challenged the male-only registration requirement on equal-protection grounds. The U.S. district court cited Rostker’s reliance on two key factual underpinnings. It said the purpose of Selective Service registration was to facilitate a draft of combat troops and women were ineligible to serve in combat. Since neither fact had changed since Rostker, the students’ claim was dismissed. In 2009, another U.S. district court, relying on Rostker, again rejected a similar claim.

But in 2019, two district courts revisited the issue and concluded Rostker may no longer be good law. In Kyle-Labell v. Selective Service System, a group of women challenged the male-only registration requirement. The court declined to dismiss the case, ruling that because women can now serve in combat roles, the facts of the current case were different than those underlying Rostker. In the U.S. District Court for the Southern District of Texas, National Coalition for Men v. Selective Service System, also considered a challenge to male-only registration. As in Kyle-Labell, the court explained that Rostker did not control the outcome of the case.

Less than two weeks after the National Coalition for Men ruling, a U.S. District Court for the District of New Jersey judge declared that Kyle-Labell could finally proceed, opening the door for a fundamental change in the draft registration process. But in August 2020, the U.S. Fifth Circuit reversed the Southern District of Texas court’s ruling in National Coalition for Men. The Fifth Circuit acknowledged that the facts underpinning Rostker had changed but held that it could not “ignore a decision from the Supreme Court unless directed to do so by the Court itself.” The court concluded that the men’s claims were foreclosed by Rostker and dismissed the case. National Coalition for Men has filed a petition for writ of certiorari with the U.S. Supreme Court (when the Supreme Court orders a lower court to deliver its record in a case so it can review it), while Kyle-Labell’s case remains pending. Given the precedential value of Rostker and conflict with Kyle-Labell and National Coalition for Men, the Supreme Court agreeing to hear one or both cases is now the only way to resolve the debate judicially.

Rostker could be deemed no longer workable as reasoned at that time because of the substantial changes to rules governing women serving in combat roles since then. If Rostker does not control, there is a good chance the justices will find the Military Selective Service violates the Fifth Amendment by imposing selective burdens on men. The court can rely instead on precedents from other sex-discrimination cases such as Mississippi University for Women v. Hogan and United States v. Virginia.

Precedents for Overturning

Convincing the court to overturn precedent, not the merits of their constitutional claims, will be plaintiffs’ greatest legal challenge. The government has successfully argued since Rostker, among other things, that the Supreme Court’s decision in Rostker controls. And since only the Supreme Court can overturn itself, plaintiffs’ claims have been dismissed. Lower courts must respect the Supreme Court’s singular role in deciding the continuing viability of its own precedents.⁶

The Supreme Court is clear on this point. In State Oil Co. v. Khan, the court held that vertical maximum price fixing was not per se unlawful, overruling Albrecht v. Herald Co. The court found that the facts on which Albrecht rested had changed and the precedent established in Albrecht was no longer good law. As in State Oil Co., the facts have clearly changed since Rostker. Women can now pilot fighter jets, drive submarines, and serve in combat.⁷ But that does not grant a court of appeals license to overrule precedent.⁸

In sex discrimination cases, the Supreme Court has overruled itself in the past. In the 1982 case Mississippi University for Women v. Hogan, a male student sought to enroll in a state women’s university because a baccalaureate degree in nursing would enable him to earn more and obtain specialized training, and no similar school was located within a reasonable distance. The court found that the prohibition violated the Equal Protection Clause, because it was not substantially related to an important governmental objective.

In United States v. Virginia, the court heard a similar Equal Protection Clause case. The federal government challenged Virginia’s policy of denying women admission to Virginia Military Institute, a publicly funded university. The Supreme Court opined that in cases of official classification based on gender, the proffered justification must be exceedingly persuasive. In addition, the discriminatory means employed must be substantially related to the achievement of governmental objectives. The Court held that Virginia failed to satisfy its burden of providing such justification for its sex-based admissions policy, and the policy was not substantially related to the achievement of those objectives.

The changed situation of women in the military alters the facts on which Rostker was decided. With every job in the armed forces now open to women, the Supreme Court should grant a writ of certiorari to the appellants in National Coalition for Men v. Selective Service System or Kyle-Labell v. Selective Service System and reconsider the Equal Protection Clause arguments against male-only Selective Service registration.