Supreme Court asked to review Constitutionality of current male-only draft registration requirement

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Edward Hasbrouck / - On January 8, 2021 the National Coalition For Men, a men’s rights organization represented by the American Civil Liberties Union, petitioned the U.S. Supreme Court to review the Constitutionality — now that women are allowed in all military combat assignments — of the law which requires men but not women to register with the Selective Service System for a possible military draft.

Read below for my FAQ about what this does and doesn’t mean, and what happens next. (Click here for links to the Supreme Court docket, pleadings, press releases, and additional commentary and analysis.)

I’ve been tracking this case up and down through the lower courts since 2015, and I attended the oral argument last year before the 5th Circuit Court of Appeals in New Orleans that led to the ruling that the Supreme Court is now being asked to review.

I’m actually a footnote (note 3, p. 4) to the petition for certiorari filed today with the Supreme Court, which cites my Web site about the draft as the authoritative source of one of the Department of Defense documents I obtained in response to my Freedom Of Information Act requests to the National Commission on Military, National, and Public Service (NCMNPS). Apparently this document isn’t available from the DoD, the NCMNPS (which removed many files from its Web site before it shut down), or any other government source. The NCMNPS summarily and improperly “closed” almost all of my outstanding FOIA requests and appeals just before it disbanded, and designated most of its records to be immediately destroyed. I managed to get all of the NCMNPS records transferred to the National Archives, which is also threatening to destroy most of those records, but has released some additional files.

Today’s filing of a petition for certiorari (petition with appendices) is no surprise. But for those who haven’t been following the issue closely, it raises questions about the seemingly strange bedfellows — a women’s rights project defending a “men’s rights” group and its members? — and the future of Selective Service registration.

Here’s some of the background to today’s filing with the Supreme Court, what it does and doesn’t mean, and what’s likely to happen next in Congress and the Supreme Court in 2021 on the draft, draft registration, and Selective Service:

Does this mean that the ACLU supports the draft, or supports drafting women? No, just the reverse.

Although it’s not mentioned in the ACLU press release about today’s Supreme Court filing, the national ACLU officially opposes the draft (whether of men, women, or both) as unconstitutional, and since 1980 the ACLU has officially opposed the current Selective Service registration requirement. The ACLU of Southern California represented the defendant, David Wayte, in the only case involving the attempted prosecution of a draft registration resister to reach the Supreme Court since 1980. (In today’s filing with the Supreme Court in NCFM v. SSS, the ACLU argues that Rostker v. Goldberg “was wrongly decided” and should be reversed. But there’s an equally strong argument that U.S. v. Wayte, which is still binding precedent on discriminatory prosecution and discovery, was wrongly decided and should be reversed.)

Counsel of record for the ACLU representing the National Coalition For Men in the Supreme Court is Ria Tabacco Mar, director of the ACLU’s national Women’s Rights Project, which was founded in 1972 by Ruth Bader Ginsburg. The ACLU Women’s Rights Project was one of the leading amici (friends of the court) in support of the plaintiff in the previous challenge to the Constitutionality of the current male-only draft registration requirement, Rostker v. Goldberg, decided by the Supreme Court in 1981.

(The other two cases related to Selective Service to reach the Supreme Court since 1980 related to the so-called Solomon Amendments which impose summary administrative rather than criminal penalties on suspected nonregistrants, without benefit of trial.)

Goldberg, his attorneys, and the ACLU as an amicus all opposed the draft, for women or men, although (as often happens) that political position was not the legal basis for their tactical arguments in court.

For the often-overlooked back story to the Supreme Court’s decision in Rostker v. Goldberg, including interviews with the plaintiff Robert Goldberg and his attorneys as well as with the defendant, Selective Service Director Bernard Rostker, see Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship, Hill and Wang, 1998, pp. 261-302. Rostker also told his side of the story, with the opposing context, in his memoir and history, I Want You: The Evolution of the All-Volunteer Force, RAND Corp., 2006. (The e-book is available as a free download from the RAND Corp., where Rostker worked after leaving the government, but the printed edition of the book includes a supplemental DVD with invaluable source material including files from the Reagan Administration’s “Military Manpower Task Force”, the predecessor to the 2017-2020 National Commission on Military, National, and Public Service.)

The ACLU and its Women’s Rights Project were also among the leading amici in support of NCFM in the 5th Circuit Court of Appeals in the current case. Their involvement, and the side they are taking — in opposition to the current draft registration program as unconstitutional — is neither surprising nor inconsistent with the ACLU’s longstanding anti-draft principles.

Does this mean that feminists support the draft, or support drafting women? No, just the reverse.

Most feminists, especially radical feminists, see war as a manifestation of patriarchy and oppose both war and the draft. As the feminist poet Karen Lindsay of Women Opposed to Registration and the Draft (WORD) said in a speech at a rally against draft registration in Boston in 1980:

To the liberals’ challenge, “If they draft men, why not draft women?” there’s really only one answer — it’s not okay to draft men. And no, it’s not okay to draft women, and no, we don’t owe… the government… collusion in as patriarchal and misogynist an institution as the draft…. Whatever else it is, war is a patriarchal institution, and every war is a war against women.

[Karen Lindsey, reprinted in “Reweaving the Web of Life: Feminism and Nonviolence”, New Society Publishers, 1982.]

Even when only men have been subject to the draft, antiwar feminists have opposed the draft:

We do not want to be drafted into the army. We do not want our young brothers to be drafted. We want them equal with us.

[Women’s Pentagon Action Unity Statement, 1980.]

Today, once again, antiwar feminists are among the leading voices organizing and speaking out against any draft of women or men.

(See this collection of feminist statements against the draft and draft registration and this article with more background on women, the draft, and draft registration.)

Are the plaintiffs in this case trying to force women to register for the draft? No, just the reverse.

The only motions on behalf of the plaintiffs, and the only order they have sought from the courts at any stage of this case, has been a finding that the current registration requirement is unconstitutional. They have never sought a ruling that women be required to register, nor would the courts have any authority to issue such an order, as discussed further below. This case is only about whether men can Constitutionally be required to register under the current Military Selective Service Act. This case has no direct effect on women.

As long as men and women are treated the same, NCFM professes to be indifferent to whether both women and men, or neither women nor men, are required to register or subjected to a draft. But both NCFM’s former counsel Marc Angelucci (with whom I talked about this in the moot courtroom at Tulane University immediately after the oral argument before the 5th Circuit last year) and NCFM’s current counsel from the ACLU oppose the draft or draft registration for women or men.

If the Supreme Court rules in favor of the plaintiffs in this case, will that mean that women have to register for the draft? No, just the reverse.

As I explained when the District Court made its initial decision in 2019 that requiring men but not women to register had become unconstitutional as a result of the opening of all military combat assignments to women, a ruling in favor of the plaintiffs in this case would not mean that women would have to register.

Despite NCFM’s agnosticism on the question of “all of us or none of us”, the case they have brought is a challenge to the draft. Its only outcome will be either a ruling allowing the current draft registration requirement, applicable only to men, to continue unchanged, or a ruling voiding that requirement, as applied to men, as unconstitutional.

Only Congress could amend the law to require women to register.

If the Supreme Court rules in favor of the plaintiffs that the current law is unconstitutional, nobody will be required to register with the Selective Service System unless and until Congress enacts a new, general-neutral law or amendment to the law authorizing the President to order women as well as men to register, and the President issues such an order.

A Supreme Court ruling that the current registration law is unconstitutional, even in the limited form of a declaratory judgment, would effectively preclude criminal prosecutions of nonregistrants. It would, however, leave a mess of uncertainty as to which of the Federal and state administrative sanctions against previous nonregistransts might still apply. As I explained to the NCMNPS, Congressional action would still be needed to repeal or preempt those sanctions and avoid decades of confusion and burdensome state-by-state litigation.

What will happen next?

(See this timeline of likely 2021 events in Congress and the Supreme Court related to draft registration, the draft, and Selective Service.)

The government will have a chance to respond to the petition for Supreme Court review. The government almost always opposes a petition for review of a lower court ruling in the government’s favor, but there is some possibility that the Biden Administration may agree that the Supreme Court should review this case. One reason the plaintiffs may have waited as long as possible to file their petition was so that the government’s response would not be due until after the new administration takes office. Other organizations will also have a chance to file amicus briefs supporting or opposing Supreme Court review of the 5th Circuit decision in NCFM v. SSS.

If the Supreme Court agrees to hear this case, argument will be scheduled for later this year.

If the Supreme Court declines to hear this case, that will leave the issue unresolved, but with the likelihood that at some future time, whenever the Supreme Court does take a case raising this question, it will find the current registration law unconstitutional.

To avoid that all-but-inevitable eventual outcome, Congress will take up this issue early this year regardless of whether or not the Supreme Court decides to hear this case. (See this timeline of coming events related to Selective Service in 2021 in Congress and the Supreme Court.) Hearings on the future of Selective Service registration will be held before or at the start of Congressional consideration of this year’s National Defense Authorization Act (NDAA) for Fiscal Year 2022, with a final decision by Congress likely by the end of 2021 when the final version of the FY 2022 NDAA is enacted and signed into law by President Biden.

The choice faced by Congress is not whether to retain the current Selective Service System or to try to expand it to women. The writing on the wall is clear to all that the current male-only registration requirement is legally indefensible. The question is whether Congress will end draft registration entirely, or try to expand it to young women as well as young men. While the possibility of a Supreme Court decision this year will put additional pressure on Congress to act, the ultimate decision on this “all of us or none of us” question is up to Congress.

Nobody understands this better than Bernard Rostker himself, the former Director of the Selective Service System whose name is on the previous Supreme Court decision. In 2019, Rostker came out of retirement to testify at a hearing before the National Commission on Military, National, and Public Service that the Selective Service registration database has become so incomplete and inaccurate as to be “ineffective and frankly less than useless” and legally indefensible. Forced to choose between ending draft registration for men and trying to expand it to women as well as men, Congress should, Rostker testified, end draft registration entirely.

I made the same argument — albeit for different reasons — in my testimony to the NCMNPS the next day, as did antiwar feminists and other anti-war and anti-draft activists who met with the NCMNPS in November 2019.

Bills for each of these options, H.R. 5492 to end draft registration and H.R. 6415 to extend it to women as well as men, were introduced in the 2019-202 session of Congress. New versions of both bills, with new numbers, are likely to be reintroduced in the 2020-2021 Congress.

The NCMNPS ignored our arguments, and in fact had secretly voted, months before they met with any anti-draft organizations, to rule out the option of ending draft registration.

The NCMNPS took a “See no evil, hear no evil, speak no evil” attitude toward issues of compliance, noncompliance, and enforcement — the Achilles heel of draft registration ever since the current registration program was started (under Rostker’s direction) in 1980.

Since the NCMNPS deliberately avoided any inquiry into compliance, noncompliance, or enforcement — either with respect to the current requirement for men to register and report address changes, or with respect to potential resistance by women to any attempt to expand registration — it’s essential for Congress to hold full and fair hearings that consider and hear from witnesses in favor of the successors to both H.R. 5492 and H.R. 6415 and the options of either ending or expanding registration, not one-sided hearings that hear only from former members of the NCMNPS (one of whom is on the Biden transition team and another of whom is being nominated to Biden’s cabinet) or posit a false choice that presumes the continuation of draft registration and considers only whether to not to try to expand it.

Now is the time, after forty years, to admit that, as I told the NCMNPS, draft registration has failed. It’s time to end it entirely.

More info (to be updated as links are posted):