The Supreme Court on Monday declined to take up a case weighing whether women should be subject to the military draft, saying Congress is already actively looking into the question.
The legal battle challenged the Military Selective Service Act, which requires only men to register for the draft after they turn 18 years old.
Led by the American Civil Liberties Union, the nonprofit National Coalition for Men argued that it is clear sex discrimination to treat men and women differently for military service.
Justice Sonia Sotomayor, joined by Justice Stephen G. Breyer and Justice Brett M. Kavanaugh, issued an opinion agreeing with the decision by the high court not to hear the case, saying Congress right now is holding hearings and analyzing whether to amend the law.
“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,” Justice Sotomayor wrote.
The high court ruled in 1981 that the federal law’s gender-based registration was lawful because women were “excluded from combat” and “would not be needed in the event of a draft.”
But in the four decades since, women have begun serving in the military, and as of 2015, there are no positions closed for women in the armed forces.
Congress created the National Commission on Military, National and Public Service in 2016 to study the issue of conducting the draft “regardless of sex.”
In 2020, the commission released its final report, which suggested ending male-only registration. The Senate Armed Services Committee recently held a hearing examining the findings.
“Requiring only men to register for the draft reflects the outdated and sexist notion that women are less fit to serve in the military and that men are less able to stay home as caregivers in the event of an armed conflict,” said Ria Tobacco Mar, director of the ACLU’s Women’s Rights Project.
“Such stereotypes demean both men and women. We’re disappointed the Supreme Court allowed one of the last examples of overt sex discrimination in federal law to stand. We urge 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,” she added.
The last time the government held a military draft was during the Vietnam War, but except for a brief interruption, 18-year-old U.S. men still must register with the Selective Service System in case conscription is ever reinstated.