·  Legal News, Analysis, & Commentary

Lawsuits & Litigation

Supreme Court Declines Lawsuit Challenging All-Male Military Draft

— June 8, 2021

While several justices appeared to support the lawsuit’s underlying logic, the bench will give Congress time to pass any necessary reform.

The United States Supreme Court has declined to hear a lawsuit which alleges that the military’s all-male draft is tantamount to unconstitutional discrimination on the basis of sex.

According to The Hill, the lawsuit was filed by a men’s rights group. In their complaint, the men’s rights activists noted that an all-male draft should be unlawful following the Pentagon’s decision to open combat roles to enlisted women in 2013.

However, the Biden administration had asked the Supreme Court to decline to hear the case. In court, the administration said that Congress is actively considering the scope of the draft, and that the issue is one best left to the Legislature.

The Hill notes that three of the justices signaled support for the bench’s refusal to hear the case, while stipulating they would be open to hearing the lawsuit if Congress does not act.

Supreme Court building. Image via Joe Ravi/Wikimedia Commons. (CCA-BY-3.0).

“The role of the women in the military has changed dramatically,” the three justices wrote.

“It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act. 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,” wrote Justice Sonia Sotomayor, who was joined by Justices Stephen Breyer and Brett Kavanaugh.

The Washington Post observes that, despite recommending the court decline the case, the Biden administration did not make its position on an all-male draft explicit. But last year, a special commission set up by Congress did opine that requiring women to register would make it “possible to draw on the talent of a unified nation in a time of national emergency.”

While military leaders have offered support for a dual-gender draft, Congress has thus far been reluctant to act.

Although past lawsuits were thrown out on grounds that women could not serve in combat rules, the 2013 policy roundabout has paved the way for fresh litigation.

Sotomayor, for instance, was keen to note the commission’s finding that male-only registration “sends a message to women not only that they are not vital to the defense of the country but also that they are not expected to participate in defending it.”

The American Civil Liberties Union, which participated in the lawsuit, expressed its disappointment that the Supreme Court—in spite of its apparent support for a gender-neutral draft—has allowed the men-only policy to remain in place.

Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project, said, “We’re disappointed the Supreme Court allowed one of the last examples of overt sex discrimination in federal law to stand.”

“[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” is unfair, Tabacco Mar added, urging Congress to “update the law either by requiring everyone to register for the draft regardless of their gender, or by not requiring anyone to register.”


Court declines suit alleging male-only military draft discriminatory

Supreme Court won’t review male-only registration for the military draft

Join the conversation!