U.S. Supreme Court decisions on draft registration since 1980
- 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 This law was partially repealed in late 2020, but that change has not yet taken effect.)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 (Cert. denied 7 June 2021)
- Supreme Court won’t review Constitutionality of current male-only draft registration requirement (by Edward Hasbrouck, 7 June 2021)
- Supreme Court asked to review Constitutionality of current male-only draft registration requirement (by Edward Hasbrouck, 8 January 2021)
- Version in español: Se solicita a la Corte Suprema que revise la constitucionalidad del requisito actual de registro de reclutamiento solo para hombres
- Supreme Court docket (Case No. 20-928)
- Petition for certiorari
- Petition for certiorari with appendices (extracts from record and opinions below
- Additional documents from the national ACLU Women’s Rights Project
- Press release and additional documents from the ACLU of Texas
- Press release from cooperating counsel Hogan Lovells
- Statement from the National Coalition For Men (NCFM)
- Additional information about the NCFM position on military conscription
- Friend-of-the-court briefs in support of certiorari:
- Pro-draft brief from senior military officers (Disingenuously arguing that, “Drafting women alongside men will improve the nation’s readiness,” even though the only direct effect of any ruling in this case would be on the registration requirement for men, not women; also misrepresenting the report of the NCMNPS as a “Congressional” report)
- Brief from NOW and other womens-rights groups (“Registration for Selective Service is an essential feature of citizenship…. The exclusion from a ‘burden’ of citizenship is just as invidious as the denial of a benefit…. Excluding women from a central duty of citizenship violates their right to equal protection.”)
- Pro-draft brief from the Service Women’s Action Network and other organizations of military women and veterans (“There are simply not enough qualified young men to meet all of the military’s needs in the event of a national emergency…. Building a robust, efficient draft contingency plan requires the immediate implementation of difficult policy decisions — such as extending registration to women.”)
- Briefs in opposition to certiorari:
- Reply brief of the ACLU on behalf of NCFM in support of certiorari
- Denial of certiorari (7 June 2021)
- Coverage on SCOTUSblog
- News reports:
- Former NSA director, retired top officers ask Supreme Court to declare military draft unconstitutional (by Todd South, Military Times, 12 February 2021)
- Groups ask Supreme Court to declare the all-male military draft unconstitutional (by Robert Barnes, Washington Post, 18 February 2021)
- Does Requiring Only Men to Register for the Draft Violate the Constitution? (by Adam Liptak, New York Times, 22 March 2021)
- What will the Solicitor General do in National Coalition for Men v. Selective Service System? (by Josh Blackman, Volokh Conspiracy, 25 March 2021)
- Gender war: A challenge to male-only draft registration lands at America’s Supreme Court (The Economist, 10 April 2021)
- Advisory Opinions podcast (with David French and Sarah Isgur, 2 March 2021; segment on NCFM v. SSS begins at 38:00 of podcast)
- Interview with Marc Angelucci, Vice-President of NCFM and counsel for NCFM in the District and Circuit Courts
- Biden administration asks Supreme Court not to hear challenge to all-male military draft (by Robert Barnes, Washington Post, 15 April 2021)
- Men-only military draft is a vestige of anti-women bias. Supreme Court should strike it down. (Op-Ed by Ilann M. Maazel, USA Today, 25 May 2021)
- Men’s group and ACLU urge Supreme Court to hear challenge to male-only military draft (by Ariane de Vogue, CNN, 31 May 2021)
- More Supreme Court BS Potentially Forthcoming: Justices Could Hear Case Requiring Women to Register for the Draft (by Marie Solis, Jezebel, 1 June 2021)
- High court asked to review men-only draft registration law (by Jessica Gresko, Associated Press, 6 June 2021)
- 3 justices suggest male-only draft is unconstitutional. But Supreme Court turns down case challenging exclusion of women from registration requirement. (by Josh Gerstein, Politico.com, 7 June 2021)
- https://reason.com/volokh/2021/06/07/8119000/?utm_content=bufferdf41e&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer (by Ilya Somin, Reason, 7 June 2021)
- Should women be exempt from the draft? The Supreme Court took a pass on deciding (by Robin Abcarian, Los Angeles Times, 9 June 2021)
- Lower court proceedings (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.
- Edward Hasbrouck v. National Archives and Records Administration (NARA)
(Civil Action No. 1:21-cv-00444, U.S. District Court for the District of Columbia, filed 21 February 2021; assigned to Judge Dabney L. Friedrich. Lawsuit brought under the Federal Records (FRA) and the Freedom Of Information Act (FOIA) to require NARA to preserve and release to the public the records of the National Commission on Military, National, and Public Service (NCMNPS) which were transferred to NARA when the NCMNPS shut down in September 2020, but which have been withheld form the public and which NARA has threatened to destroy.)
- 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 government 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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