There’s been a lawsuit kicking around in the courts for a while now, challenging the male-only requirement for young men to register for selective service, better known as the draft. The suit was brought by the ACLU and a group known as the National Coalition for Men. (I know.) They claim that the draft requirements are unconstitutional because they discriminate against women. Now the case is about to reach the Supreme Court, but the Biden Justice Department has submitted a request to the court to reject the case. Unfortunately, the reasons being offered for the request don’t really provide much insight into whether Joe Biden actually supports having women register for the draft or if he opposes it. In fact, the rationale being offered doesn’t make much sense at all. (Free Beacon)
The Biden administration is urging the Supreme Court not to hear a constitutional challenge to the men-only draft registration system, but female Selective Service registration is still a possibility.
The Justice Department told the High Court on Thursday that judicial action is unnecessary because Congress is actively considering whether to change draft registration rules. The National Coalition for Men and the ACLU say the Military Selective Service Act is unconstitutional because it discriminates against women, and they asked the justices to say as much in January.
“Although this Court might someday wish to reconsider the constitutionality of the MSSA’s registration requirement if that statutory provision remains unchanged, Congress’s attention to the question may soon eliminate any need for the Court to grapple with that constitutional question,” DOJ lawyers wrote in legal papers.
The analysis provided by the Free Beacon suggests that Biden believes the matter will soon be moot because Congress may act on the issue soon and the original justification for the suit is no longer in effect. (When it was first brought forward, the military was still opposing it, but the Pentagon endorsed a draft registration requirement for women in 2017.) The brief also makes no effort to defend the constitutionality of the gender-specific nature of the draft.
The basis for the request seems rather shakey right out of the gate. Saying that Congress is “considering” legislation that would address the matter is meaningless. Congress “considers” things all of the time, but that doesn’t mean that any meaningful legislation will result. If a new law had already been passed, then sure. The court could kick the entire case out as being moot. But at least for now, this is still a live ball.
Beyond that, there’s the entire question of whether the male-only Selective Service registration requirement can even be considered discriminatory. What fundamental “right” are women being denied by being excluded from the draft? There’s nothing stopping any American woman from attempting to enlist and putting on the uniform if they meet the basic requirements. The only thing the draft policy does is protect women from being forcibly entered into military service if they don’t want to. In order to be discriminatory toward females, wouldn’t the policy have to deny them some opportunity that’s only being afforded to males? Back during the Vietnam War, I highly doubt that any of the potential draft dodgers felt that they were being given a special opportunity when they had no interest in enlisting to begin with.
As long-time readers likely know, I’m opposed to the entire idea of women in combat. It’s something that I’ve been writing about here for nearly a decade. It’s not that I don’t feel that there are some women out there who could do the job. There definitely are. But I still believe that exposing our nation’s women to the risk of being captured by the enemy is too high of a price to pay in the name of equality, for reasons I won’t go into yet again.
The last time the Supreme Court heard a case challenging this policy was in 1981 in Rostker v. Goldberg. The court sided with the military in that case, noting that women were not allowed in combat roles at the time and the policy was only reflecting the existing rules of the military rather than discriminating against women. As the linked analysis points out, there’s probably a fair chance that the court will drop this hot potato as Biden has requested, primarily because they prefer to avoid sticky constitutional questions regarding gender issues when they can. Personally, I hope that’s what they do, though for obviously different reasons.