U.S. Supreme Court decisions on draft registration since 1980
- National Coalition For Men v. Selective Service System (petition for certiorari filed 8 January 2021)
- Rostker v. Goldberg, 453 U.S. 57 (1981)
(upholding the Constitutionality of requiring men but not women to register for the draft. For more about the legislative and legal -- although not the activist -- context to this case, see the detailed account including interviews with Goldberg and his attorneys by Linda K. Kerber in
No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship, Hill and Wang, 1998, pp. 261-302, and Bernard Rostker,
I Want You: The Evolution of the All-Volunteer Force, RAND Corp., 2006 (free download as e-book, but the printed edition includes a supplemental DVD with extensive source material including files from the Reagan Administration's "Military Manpower Task Force").
- Selective Service
v. Minnesota Public Internet Research Group (MPIRG), 468 U.S. 841 (1984)
(upholding the Constitutionality of the first of the Federal "Solomon Amendment" laws,
which requires applicants for Federal student aid to certify that they have complied
with draft registration, either by having registered or by not being required to register.
Note that this case was decided while all of the plaintiffs were under age 26, and thus
could still have registered with the Selective Service System. The Supreme Court
has not yet ruled on the Constitutionality of this or similar laws as applied to
nonregistrants who were or are 26 or older, and can no longer "cure" their ineligibility by registering.
This law was partially repealed in late 2020, but that change has not yet taken
effect.)
- Wayte v. United States, 470 U.S. 598 (1985)
(upholding the policies and procedures which the Supreme Court thought the government had used to select the "most vocal"
nonregistrants for prosecution, after the government refused to comply with discovery orders by the trial court to produce
documents and witnesses related to the selection of nonregistrants for prosecution. Don't rely on this decision as an
accurate statement of the actual prosecution practices. See the dissent for why the factual record was incomplete, and the
case was decided prematurely and on the wrong issues.)
- Elgin et al. v. U.S. Treasury et al., 567 U.S. 1 (2012)
(Complaint CA No. 07-12391-DPW, U.S. District Court for the District of Massachusetts,
decided 26 January 2009; reversed 11 March 2010
on reconsideration by the District Court; reversed and remanded 8 April 2011 by the
First Circuit Court of Appeals; Circuit Court decision affirmed by the Supreme Court,
11 June 2012. The District Court initially found that the "Solomon Amendment" is an unconstitutional "bill of attainder" as applied to men who are
denied Federal jobs for life because they didn't register for the draft, but who are now age 26 or over and thus too old to be allowed to register.
On reconsideration, the District Court reversed itself and dismissed the complaint "without prejudice", and that dismissal was upheld
by the Court of Appeals and the Supreme Court. The dismissal was on purely jurisdictional and procedure grounds, and neither
the Court of Appeals nor the Supreme Court reached the constitutionality of the law. Both the Court of Appeals
and the Supreme Court (and the government, in its arguments to the Supreme Court) explicitly left the plaintiffs free to pursue
administrative remedies and, eventually, if those are denied, a renewed Circuit Court appeal through a different procedural mechanism.)
Other lawsuits related to draft registration
- National Coalition For Men v. Selective Service System
(Case 19-20272, U.S. Court of Appeals for the 5th Circuit. 5th Circuit PACER docket; RECAP mirror of 5th Circuit PACER docket. Previously civil case 4:16-cv-03362, U.S. District Court for the Southern District of Texas, decided 22 February 2019. District Court PACER docket, RECAP mirror of District Court docket. Lawsuit challenging the Constitutionality of requiring men but not women to register for the draft. Originally filed 4 April 2013, U.S. District Court for the Central District of California (complaint); dismissed by the District Court 29 July 2013 as not "ripe" for decision; reversed and remanded by the 9th Circuit Court of Appeals, 19 February 2016. On 9 November 2016, a U.S. District Court judge in Los Angeles ruled that this case had been filed in the wrong place, and ordered it transferred to the U.S. District Court for the Southern District of Texas in Houston, where the plaintiff lives. On 6 April 2018, the U.S. District Court judge in Houston denied the government's motion to dismiss the case. On 22 February 2019, the District Court issued a declaratory judgement that the current male-only registration requirement is unconstitutional. Notice of appeal by the government filed 22 April 2019. Government's opening brief filed 14 August 2019, requesting oral argument. The Eagle Forum, an anti-feminist pro-military organization which was founded by Phyllis Schlafly and which opposed both the Equal Rights Amendment and the 1980 proposal to include women in draft registration, has filed a friend-of-the-court brief supporting continued registration of men for the draft, opposing requiring women to register, and asking the Court of Appeals to overturn the District Court decision. The plaintiffs/appellees (the National Coalition For Men) filed their brief in the appeal on 3 October 2019. On 18 October 2019, a coalition of civil liberties and womens-rights organizations filed a friend-of-the-court brief arguing that the Court of Appeals should uphold the District Court finding that that the current Military Selective Service Act is unconstitutional because it discriminates between men and women without an adequate basis. The government's brief in reply to the plaintiffs and the amici was filed 24 October 2019. Oral arguments on the appeal were heard by a 3-judge panel of the 5th Circuit Court of Appeals in New Orleans on 3 March 2020. On 13 August 2020, the 5th Circuit reversed the District Court decision.
A petition for review by the Supreme Court has been filed; see above for more on the case in the Supreme Court.
- Kyle-LaBell v. Selective Service System
(Case 2:15-cv-05193, U.S. District Court for the District of New Jersey, filed 3 July 2015. RECAP mirror of PACER docket. Lawsuit brought on behalf of Elizabeth Kyle-LaBell, who tried to register when she turned 18 in 2015 but was turned away because she is female. On 29 March 2018 and again on 4 March 2019 the District Court denied requests by the govenment to dismiss or delay a ruling in the case. Ms.Kyle-LaBell has requested a declaratory judgement -- like the one already issued in NCFM v. SSS, above -- that the current male-only draft registration requirement is unconstitutional. She also seeks "(i) to enjoin Defendants from registering only males; or (ii) to require that females register with the SSS; or (iii) to require that registration be voluntary for both sexes." There has been no ruling yet on these requests, but the second of these options for injunctive relief, requiring women to register, is clearly beyond the authority of any court. Only Congress can create new obligations or criminal penalties for noncompliance with them. Oral argument (by telephone due to the pandemic) on the plaintiff's motion for certification as a class action was scheduled for 25 June 2020, but then cancelled by Judge Esther Salas, who said she would rule on the pending motions on the basis of the written briefs. On 22 July 2020, following an attack on Judge Salas' home (killing her son and wounding her husband) by a lawyer who had formerly represented Ms. Kyle-LaBell in this case, the case was reassigned to a new judge, Judge Katharine S. Hayden. Judge Hayden, after review of the record, could rule on the pending motions or request oral argument or additional briefing.)
- Jacobrown v. Selective Service System (U.S. District Court for the District of Columbia, filed 29 July 2009;
dismissed without prejudice
(alternate site for opinion)
with leave to re-file an amended complaint, 22 February 2011)
(lawsuit brought under the Religious Freedom Restoration Act on behalf of nonregistrant Toby Jacobrown (Web site,
newer blog, older blog) to require the SSS to permit registrants to indicate when they register that if drafted they intend to seek classification and exemption from military service as conscientious objectors, and to require the SSS to include those
statements of intent to seek CO status in registration records)
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This page most recently modified 13 January 2021. This site is maintained by
Edward Hasbrouck. Corrections, contributions (articles, graphics, photos, links, etc.), and feedback are welcomed.