Draft Registration for Women? The Supreme Court Stands Down

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To everything there is a season, and in a season when the Supreme Court will decide many important questions, the justices have recognized an important truth: For major constitutional issues, there is a time to act, and there is a time to do nothing.

They followed this wisdom in declining to hear a lawsuit challenging the constitutionality of requiring only men to register for the military draft. You may ask: What draft? The justices may have asked themselves the same question.

Aware that military conscription hasn’t happened since 1973 — a year after Amy Coney Barrett, the newest justice, was born — they understand that there is no urgency about resolving a question that is important in principle but moot in practice.

Despite the absence of a draft, all males from age 18 to 25, including noncitizens, have to register with the Selective Service System — just in case the government should one day want to invite them to boot camp.

Anyone who doesn’t comply is ineligible for federal student aid, federally funded job training and, in the case of foreigners, U.S. citizenship. In some states, failure to register means you can’t attend a public university or get a driver’s license.

Failing to register is a felony, but not really: No one has been prosecuted since 1986.

In 1981, the court said excluding women was fine because they couldn’t serve in combat. But since then, women have been admitted to every role the military has. As Defense Secretary Ashton Carter announced in 2015, “They’ll be allowed to drive tanks, fire mortars and lead infantry soldiers into combat.” There are female fighter pilots, ship commanders and paratroopers.

The basis for the 1981 decision has disappeared. Those challenging the law, a group called the National Coalition for Men, clearly have the better of the argument. In recent decades, the court has repeatedly ruled that the constitutional mandate of equal protection requires women and men to be treated the same.

Discrimination against women is not allowed. The justices ordered the Virginia Military Institute, a public college that had been all-male since its founding in 1839, to admit women. Nor is discrimination in favor of women allowed: The court also said that Mississippi University for Women, the first public women’s college in America, had to admit men to its nursing school.

It's safe to assume that even a court loaded with conservatives would find it hard to justify a system that obligates one sex while sparing the other. In time, the government will have to choose between making everyone register and making no one register.

But that doesn't mean the court should butt in now. The burden on men is modest, and it would not be lighter if women were also forced to shoulder it. The chance of actual conscription, in our modern era of high-tech warfare, is too remote to warrant immediate reform.

Besides, as Justice Sonia Sotomayor noted in a statement explaining the decision not to hear the case (joined by Stephen Breyer and Brett Kavanaugh), Congress may very well address the issue itself.

A congressionally created commission issued a report last year that said, "The time is right to extend Selective Service System registration to include men and women." The Biden administration asked the court to stand down, giving Congress time to decide whether to enact that change.

Consider this unlikely spectacle: A Democratic administration asked the court not to issue a decision that would align with its own preferences, and liberal justices declined to consider a case in which they would probably prevail. This deference to the other branches of government reflects an approach commonly championed by conservatives.

Supporters of gender equality might wish to achieve this victory immediately. But there are good reasons to commend the court and the administration for their caution. Decisions by elected representatives generally win greater public acceptance than decrees by judges.

Judicial abstinence isn't likely to preserve the male-only registration system in the end. No one seriously denies that men and women deserve the same opportunities and duties, except in rare circumstances. If Congress refuses to uphold that principle, the court will have plenty of chances to do so.

There are times when the court has to settle an issue. But wise justices also know when to say: "You know what? We're not needed here."

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15 thoughts on “Draft Registration for Women? The Supreme Court Stands Down”

  1. This has to be coming from Dems as women should have the right to serve as a choice but to draft women no. All women are not fit physically and I might say most to serve in battle. They can serve in other ways as nurses for example.

    1. Really? Then how do all those Israeli females make it through 2 years of mandatory service? They can do it so our little snowflakes need to take a page from their playback perhaps.

  2. Had the Equal Rights Amendment been ratified back in the 1970s, women would be registering for the draft now. It is probably only a matter of time until women will be required to register, since men lose certain things if they fail to register, while women suffer no such penalties.

  3. I JOINED USA NAVY IN 1964 TO AVOID THE ARMY DRAFT.
    I ATTENDED ELECTRICIAN SCHOOL AND WENT TO AN
    AIRCRAFT CARRIER IN SAN DIEGO. WE MADE 3 TRIPS TO
    VIET NAM. OUR SHIP HAD 3,500 MEN ABORD; IWAS PROMOTED
    TO E-4 ELECTRICIANS MATE. I DO NOT REGRET ANY DECIONS
    THAT I MADE IN MY LIFE. MY WIFE AND I ARE MARRIED 50
    YEARS NOW. PRAISE THE LORD JESUS CHRIST. I AM SURE
    THAT EVERYONE AGREES…AMEN.

  4. I JOINED USA NAVY IN 1964 TO AVOID THE ARMY DRAFT.
    I ATTENDED ELECTRICIAN SCHOOL AND WENT TO AN
    AIRCRAFT CARRIER IN SAN DIEGO. WE MADE 2 TRIPS TO
    VIET NAM. OUR SHIP HAD 3,500 MEN ABORD; I WAS PROMOTED
    TO E-4 ELECTRICIANS MATE. I DO NOT REGRET ANY DECIONS
    THAT I MADE IN MY LIFE. MY WIFE AND I ARE MARRIED 50
    YEARS NOW. PRAISE THE LORD JESUS CHRIST. I AM SURE
    THAT EVERYONE AGREES…AMEN.

  5. I, being a Honorable Discharged SSGT from the U.S. Army and whose Draft Lottery Number was 4 find myself extremely pleased that I was Drafted prior to the Lunacy of today LEFTIST FEMANIST! WOMEN DO NOT NEED TO BE IN A COMBAT SITUATION! Many of them DO NOT HAVE THE PHYSICAL CAPABILITY TO BE IN A COMBAT SITUATION!

    The Military does NOT NEED TO LOWER THEIR STANDARDS TO ACCOMMODATE WOMEN IN THEIR RANKS! As a Soldier I want to KNOW THAT THERE IS A SOLDIER BACKING ME UP and not someone I would feel I needed to protect!

    So, in my HUMBLE OPINION the answer is simple, WOMEN DO NOT NEED TO BE ON THE BATTLE FIELD!

  6. If a woman has demonstrated competency in a given role, let her serve. But don’t force it because of some ill-conceived idea of equal rights. All you will accomplish is needlessly getting people killed. Men and women will never be equal. we are biologically different. Get over it. I would not be against a draft for women because there are many support roles women can fill if they don’t feel mentally or physically equipped for combat. Some men are not mentally equipped for combat, especially in this male neutering society we live in today. Gender confusion has reached an all-time high. If you have a Y chromosome, you’re a male. if you don’t, you’re female. It’s a biological scientific fact!

  7. When and if this becomes an issue I would expect the courts to require women to register. It would be better if that system were already in place, however.

  8. Equality is of the essence. Feminists demand all of the rights, obligations and privileges of males. This is their chance to level the playing field. 30 pushups, now !