JUSTICE DEPARTMENT

DOJ Urges Supreme Court Not to Accept Legal Challenge to All-Male Military Draft

BY MATTHEW VADUM

The Biden administration is urging the Supreme Court not to take up a petition asking the court to strike down as unconstitutional a law that authorizes military conscription solely for men.

The Trump administration defended the current system in the lower courts.

President Joe Biden’s Department of Justice (DOJ) obtained two deadline extensions before filing its response.

The case is National Coalition for Men v. Selective Service System, court file 20-928.

In 1981, the Supreme Court ruled 6–3 in Rostker v. Goldberg that the Military Selective Service Act, under which men, but not women, are required to register for the draft, survived constitutional scrutiny



Don’t Accept Legal Challenge to All-Male Military Draft, DOJ Urges Supreme Court

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because women at that time were categorically prohibited from serving in combat roles. Because the primary purpose of registration was to replace combat troops, the court stated, “the existence of the combat restrictions clearly indicates the basis for Congress’ decision to exempt women from registration.”


Any reconsideration of the constitutionality of the male-only registration requirement … would be premature at this time. Elizabeth Prelogar, U.S. acting solicitor general

Although the Department of Defense rescinded the ban on women in combat in 2013, the obligation to register for the draft remains limited to men. From age 18 to 26, men are required to submit their information to the Selective Service System in case a draft is deemed necessary in the future.

In a brief filed with the high court on April 14, the Biden administration carefully avoided taking a position on whether the draft system should be changed, explaining that Congress was now taking a look at the issue.

“Any reconsideration of the constitutionality of the male-only registration requirement ... would be premature at this time,” Acting Solicitor General Elizabeth Prelogar wrote in the document.

“Congress is actively considering the scope of the registration requirement, and Rostker itself made clear that the Court should defer to Congress where possible in this sensitive military context.

“Congress’s attention to the question may soon eliminate any need for the Court to grapple with that constitutional question.”

The organization that brought the case is the San Diego-based National Coalition for Men (NCFM), which was “founded in 1977 upon the realization that men needed a unified

voice in addressing issues concerning men and boys,” according to its website.

The NCFM is represented in the case by the American Civil Liberties Union (ACLU), which takes the position that scuttling the men-only registration requirement would undo one of the last examples of overt sex discrimination in federal law after the Supreme Court allowed gay marriage and found last year that employment discrimination against gays and transgender individuals was illegal.

“The question presented is whether ... the federal requirement that men but not women register for the Selective Service ... violates the right to equal protection guaranteed by the Fifth Amendment,” NCFM stated in its petition.

The Michigan-based Center for Military Readiness (CMR) argued in a friend-of-the-court brief filed March 12 that the Supreme Court should turn away NCFM’s petition because Congress, not the courts, is authorized by Article 1, Section 8 of the Constitution to set military policy.

“We support the Selective Service System as an insurance policy in the case of a catastrophic national emergency,” CMR President Elaine Donnelly previously told The Epoch Times in an interview.

In a recent interview after the government brief was filed, Donnelly said her group wasn’t sure what position the Biden administration was going to take.

“The argument that they make that Congress” is responsible for the issue “is essentially the same as the one we make in our amicus brief,” she said, referring to her group’s amicus curiae, or friendof- the-court, brief.

“They did not, however, address the elephant in the room—whether men and women are similarly situated, essentially interchangeable in combat units.”

CMR’s Supreme Court brief acknowledges that some women have proved themselves capable of meeting the high standards that combat demands and previous policies regarding women in combat billets have been repealed, but “the physiological differences between men and women have not been repealed.”

Ria Tabacco Mar, counsel of record for NCFM and director of the ACLU Women’s Rights Project, was critical of the Biden administration’s filing. “Noticeably absent from the government’s brief is any argument that men-only registration is constitutional. That is not surprising given that men-only registration is outdated, based on gender stereotypes , and no longer recommended by the military itself,” she told The Epoch Times.

“Rather than try to defend menonly registration, the government asks the Supreme Court to give Congress more time to update the law. But President Carter made the same ask in 1980, and Congress hasn’t fixed the problem despite having 40 years to do so. It’s long past time for the Supreme Court to declare that men-only registration is unlawful sex discrimination.”

Do you really want to draft women when, even after they are trained - they don't recognize the difference between a taser and a pistol?

Funny that you mention that being that male officers have made the same mistakes. I the heat of the moment the only difference in feel is the weight which you probably wouldn't notice as you are fighting someone. Ironically the warrant was for unlawful possession of a firearm so I'm glad that thug will never walk the streets again. Clearly he put the car in gear as it took off when he was shot, that also becomes a deadly weapon. Did you happen to see the video off the officer that was hit in the head with a hammer by a guy who refused to wear a mask? The officer got trapped in the man's truck door as the man was driving away, Fourtantly the incident ended with no further injuries to that officer. My concern about women in the military is more about when its that time off month and also the sexual harassment and assaults that have gone on thru the years by these guys that think they are all that. But odds of having a draft are so low, and combat is often much different in these days as we go toward technology, that I would not have a problem with having women sign up for the draft. In the past it hasn't always been if the women can do the job, but more about having them having children and taking care of them to keep the population going.

Women can do everything a man can. The Draft should include all sexes regardless what or how or who they identify as. Male-Only Draft is sexual discrimination towards women and the LGBTQ community and shouldn't exist in 2021.

I'm not against women in the military, I was being facetious.

I AM against drafting women; however, for the simple fact that, on average - they are the weaker sex. If a woman wants to volunteer and can pass the standards set by the military, all the power to her. But to draft women that have no interest in being there, only to get murdered by the enemy, is counter-productive and down right masochistic. I understand that guys don't want to be there either - but on any given day, if the enemy has a platoon of dudes that don't want to be there, versus a platoon of chicks that don't want to be there, my money is on the dudes - EVERYTIME.

There are differences in the sexes no matter how loud the feminists and the lefties get. That's been understood since the dawn of man, and somehow in one generation it's all azz backwards. Men are protectors, always have been, always will be. Most women look for men taller than them - wonder why? They are also providers. The chances of a dude that lives in his mom's basement getting a date are slim. There are gender roles, but nobody will say it these days but it's prevalent in almost every aspect of our social interactions with each other... bring on the hags and white knights that will argue for the anomalies.

Men can do anything a woman can do.....
Caitlin Jenner got woman of the year - men are even better at being a woman than women are

Did Jenner carry a baby for 9 months?

SOME women can do what men do physically but most can't. If ANY standard is LOWERED in the physicality of ANY military DUTY required to carry out ANY mission to make it MORE likely a woman can be included in a mission then peoples lives can be put in danger.

It's not discriminatory to have the SAME standard for EVERYONE.
Tell a person, man or woman, who is wounded that it's discriminatory if a 6'3" male doesn't step aside so a 5'4" woman can carry them to safety.

It WOULD be discriminatory towards men to draft women and reserve non-combat duties for women or less physical duties for women.

I have no problem with "equality" but I do have a problem with preferential treatment for any sex, or race, to achieve "equity" especially when it means lowering standards that puts people lives at risk.

I've seen those women Marines. I, for one, would not want to F with any one of them.
Also, using the military in an Equality argument is disengenuous. There are PLENTY of men who couldn't cut it in the military.
A woman can do whatever a man can in a normal life setting. The military isn't a normal environment, war isn't regular day-to-day stuff.
Not everyone can be an astronaut yet some men and women are astronauts.
And frankly, nowadays, women have beat men in a lot of areas if not most. Caitlin Jenner was right to become a woman. I just may follow in her footsteps.

You finally said something that makes sense..."The military isn't a normal environment, war isn't regular day-to-day stuff".
Just WHY are there drafts????? Drafts are conducted during wars. And it's true the military isn't a normal environment....it's an environment where people NEED to be ready to go to war whether they are in the military though enlistment or a draft.
Thank you for making my original point valid.

I stand behind what I said...."SOME women can do what men do physically but most can't." The operative word is SOME, and women WHO physically CAN do the same job as man, in the military or private sector, they should be given EQUAL consideration.

I also stand by saying "It WOULD be discriminatory towards men to draft women and reserve non-combat duties for women or less physical duties for women."
Ya see I believe in ACTUAL equality unlike people who CLAIM to believe in equality really promote preferential for what they call a "protected class" of people.

I'm glad you agree with me.