Women with a U.S. Marine Female Engagement Team operating in Europe. (U.S. Marine Corps photo by Sgt. Michelle Reif)
The Selective Service System is an independent agency of the U.S. government responsible for conscripting personnel for service in a national crisis, colloquially referred to as “the draft.” The Military Selective Service Act (MSSA) currently requires U.S. residents assigned male at birth (AMAB) to register with the Selective Service System at the age of 18. The military draft, if it were ever reinstated, would draw from the registered pool of AMAB individuals 18 to 25 years old. Failure to register is a felony punishable by up to five years’ imprisonment or a $250,000 fine and can result in ineligibility for state-funded student financial aid, most federal employment, some state employment, a security clearance and U.S. citizenship (for noncitizens). Anyone assigned female at birth (AFAB) is not required to register and is barred from registering voluntarily.
The stark contrast in registration requirements has galvanized litigants to question the constitutionality of the policy. In 2013, the National Coalition for Men (NCFM) filed its first complaint in district court; the organization alleged the Selective Service System’s disparate impacts on the basis of gender violate the 14th Amendment’s Equal Protection Clause. After three trials and two appeals, the NCFM petitioned the Supreme Court for review in January 2021. A June 2021 statement by Justice Sonia Sotomayor explained the court’s decision not to revisit its 1981 Rostker decision, which found that there was a rational basis for the discrimination (women’s exclusion from combat roles), supported by a legitimate government interest (conscription’sfocus on combat shortages). While the Supreme Court acknowledged that the Rostker reasoning is inconsistent with contemporary facts, it denied review based on the court’s deference to Congress as long as they “actively weighed” the issue. In November 2021, Congress stripped a gender-neutral draft provision (Section 511) from the National Defense Authorization Act for Fiscal Year 2022 (2022 NDAA).
Despite apparent concurrence with the plaintiffs’ factual contentions, the Supreme Court’s denial of review has the operative effect of maintaining the status quo. The judiciary has declined to overturn the 1981 Rostker precedent, and, in the absence of congressional reform, it remains “good law.” Still, in many respects, the U.S. has never been closer to imposing equal draft registration requirements on both men and women than it was in 2021.
How Did We Get Here?
Lack of public support for military conscription in the U.S. inspired President Ford’s Proclamation 4360, which terminated the selective service registration requirement in 1975. In 1980, when the Carter administration revived the mandatory registration under Proclamation 4771, it was still widely unpopular. By 1981, the Supreme Court was reviewing a sex discrimination case titled Rostker v. Goldberg, in which plaintiffs argued that the male-only requirement to register for selective service violated their constitutional right to equal protection. In the court’s ruling, Justice William Reinquist explained that the policy was not discriminatory because (a) it furthers an important government interest and (b) the divergent treatment of men and women was substantially related to that interest. The plurality reasoned that military conscription primarily addressed a shortage of combat-oriented personnel, and women’s presumptive disqualification or exclusion from combat roles justified their exclusion from the draft.
In the 2010s, the armed forces began incrementally lifting restrictions on women’s service. Today, otherwise-qualified AFAB service members are not excluded from any occupation or school in the U.S. military, including combat roles. As these barriers have gradually diminished, selective service has been subjected to increasing reexamination. In 2016, National Security Council spokesman Ned Price expressed then-president Barack Obama’s support for extending the registration requirement to women. Concurrently, the Senate Armed Services Committee and the House Armed Services Committee required women to register for selective service in their respective drafts of the NDAA that year. The Rules Committee members ultimately cut off consideration of the issue and struck that entire section of the 2016 NDAA before it was passed. In lieu of draft reform itself, the 2016 Congress created the National Commission on Military, National, and Public Serviceto conduct a study on draft reform, readiness, and fostering a national ethos of service.
The judiciary also became freshly embroiled in the controversy around that time. The NCFM filed a complaint in the U.S. District Court for the Central District of California in 2013, relying on a memorandum by the secretary of defense from earlier that year, which rescinded the 1994 Direct Ground Combat Definition and Assignment Rule and directed the armed services to open all occupations and units to women as expeditiously as possible, but no later than January 2016. The NCFM argued that this directive changed the facts underlying the Rostker decision and proposed that the Selective Service System is impermissibly discriminatory under these new facts.
The district court distinguished the directive to open all occupations to women from the actualization of that order. The armed services had until January 2016 to fully integrate, so the issue was dismissed for ripeness until after that deadline passed; the U.S. Court of Appeals for the Ninth Circuit reversed and remanded that decision in February 2016. A second Texas trial court did not reach the merits but transferred the case to the U.S. District Court for the Southern District of Texas (where the representative plaintiff had registered with the Selective Service System). The NCFM found a sympathetic ear in district court Judge Gray Miller, who in February 2019 granted summary judgment, ruling that it is unconstitutional for the government to require only men to register for the draft. In Miller’s opinion, the NCFM case was distinguished from the Rostker decision because women are not presently excluded from any role in the armed services (including combat roles), as they were in 1981.
The Selective Service System requested that Miller stay the proceedings until the aforementioned national commission issued its final report in 2020. The agency argued that the commission was evidence that “Congress, the Executive Branch, and the public are engaged in an ongoing policy process” and that Miller owed deference to the political process. He declined, reasoning that “[e]ven constitutionally mandated deference does not justify a complete and indefinite stay when parties allege that the federal government is presently violating their constitutional rights.” On appeal, the U.S. Court of Appeals for the Fifth Circuit overturned the district court ruling, but not for disagreement with the factual circumstances. In the court’s view, it was obligated to adopt the Supreme Court’s Rostker position without regard to factual developments.
In 2020, the National Commission on Military, National, and Public Service published its final report and recommended that, as long as selective service continues to exist, women should be included in the registration mandate. The American Civil Liberties Union joined NCFM representation and, in January 2021, petitioned the Supreme Court for certiorari. In June, the court denied review. Justice Sotomayor subsequently penned a statement, joined by Justices Stephen Breyer and Brett Kavanaugh, explaining the position of the Supreme Court. Like the district court judge, the plurality implicitly agreed that the Rostker reasoning does not mesh with contemporary facts and similarly anticipated that Congress may fail to pass the suggested reforms. The statement deviates from Miller’s contentions in one key respect: It cites the court’s “longstanding deference to Congress on matters of national defense and military affairs[, which] cautions against granting review while Congress actively weighs the issue” (emphasis added).
While the NCFM has exhausted its opportunities for appeal or review, a simultaneous suit, Kyle-Labell, argues the Selective Service System is discriminatory against women for circumscribing their registration. Although Kyle-Labell was initially filed in the U.S. District Court for the District of New Jersey in 2015, it is still early in its procedural posture. A trial on the merits has been delayed significantly by foreseeable legal circumstances (surviving two motions to dismiss) and unforeseeable personal tragedy. In July 2020, a disgruntled former litigant (in an unrelated case) disguised himself as a FedEx delivery driver, drove to the home of presiding Judge Esther Salas, fatally shot her son and critically wounded her husband. The district court also stayed proceedings pending the debate around the NDAA and has not yet decided Labell’s equal protection claim on the merits. Because Congress has passed the 2022 NDAA without the desired reforms, proceedings are likely to resume in the near term, and this complaint is poised to become the Supreme Court’s next opportunity to revisit the Rostker precedent.
If Congress were to pass selective service reform, the NDAA is an obvious vehicle for it. The NDAA sets defense funding for the year, and it often includes additional provisions to reform and refine the operation of the U.S. military. This year, the NDAA included language on military justice reform and vaccine noncompliance, but Section 511 (titled “Modernization of the Selective Service System”) was stripped from the bill days before it passed the House. Sen. Josh Hawley of Missouri is credited with the first formal proposal to “strike Section 511.” His comments on the NDAA inspired conservative advocacy groups such as Concerned Women for America to lobby aggressively against the provision. These efforts were, apparently, sufficient to quash further consideration. The section, if passed, would have amended the MSSA language to require “every person” to register for the draft.
What Happens Now?
The AMAB-only registration requirement is a legal frontier of government discrimination and, though these conversations have happened largely out of the public eye, vocal supporters of reform include legislators, judges, advocacy groups, academics, laypeople and the congressional commission charged with studying the issue. In response to the 2022 NDAA’s silence on draft reform, some commentators have called for the Supreme Court to revisit the issue, including former Rep. Joe Heck, who inquired, “Congress refused to act. Now what are you going to do?”
If, when and how selective service reform comes to pass will be determined by a number of outstanding questions. This Supreme Court has not been bashful about overturning precedent, but, as a matter of procedure, it cannot just pick up where it left off. The window to file for a rehearing has closed. It remains to be seen whether the NFCM, the ACLU, Kyle-Labell or another party with sufficient standing will relitigate this complaint to the Supreme Court. Further, the Supreme Court denied review in 2021 out of deference for Congress while it “actively weighed” draft reform. Per an NCFM filing, Congress has actively weighed draft reforms (including outright abolition) every year since 2000. Even if litigants reach the petitioning phase, prospects of review will depend on the limits of this judicial deference.
It is also foreseeable that legislative reform or executive action may moot the issue before the Supreme Court has a new occasion to review it. Historically, presidents have made incremental changes to the form and function of selective service (via executive orders) and made sweeping changes to the public duty around it (via proclamations). The Ford administration’s Proclamation 4360 suspended the Selective Service System entirely from 1975 to 1980 (when another proclamation reanimated it). Whether President Biden (or any successor) will spend political capital to unilaterally reform the system is an open question, especially against the uneasy backdrop of the recent Russian invasion of Ukraine. Further, if the administration were mulling a change, would it reform the draft or (like the Ford administration) suspend it altogether?
This same inquiry is present in legislative conversations, with several representatives favoring abolition of the draft rather than expansion. Up to now, this issue has enjoyed relative topical obscurity, making it an easy concession in political horse-trading. Few members of Congress have inboxes full of strongly worded mail regarding draft reform, and that has largely relegated the subject to the cutting room floor in favor of other partisan legislative priorities. Whether that trend continues later this year—when Congress considers the 2023 NDAA—remains to be seen.