The group is asking judges to reconsider a 1981 ruling that upheld the Selective Military Service law under which men – but not women – are required to register for the project. Key to the court’s decision, which was made by an all-male tribunal, was its observation that “women as a group … unlike men as a group, are not eligible for the election. combat “.
This changed in the decades that followed. David Cole of the American Civil Liberties Union, which represents the National Coalition for Men, has asked the Supreme Court to take up the case – even highlighting what it could have meant for the late colleague of the judges, Ruth Bader Ginsburg .
Cole tweeted that “#RBG would be proud of an effort to challenge one of the last formal sex distinctions under federal law,” referring to the fact that Ginsburg spent her years as a young lawyer opening up the way to the fight against discrimination based on sex.
In court documents, the ACLU argues that “military recruitment for men is unlawful sex discrimination” and that the registration requirement “has no legitimate purpose and cannot withstand the rigorous scrutiny required by laws based on sex ”.
“By weighing only men while excluding women, the military service law sends a message that women are not vital to the defense of the country,” argued the ACLU.
The Department of Defense lifted the ban on women in combat in 2013, and now a group of retired military officers are supporting the ACLU’s efforts. They include General Michael Hayden, General Stanley McChrystal, Lieutenant General Claudia Kennedy and others.
Their lawyer, Lindsay Harrison, wrote in a friend of the court brief: “Our armed forces draw on the strength of the entire nation, not just its men.
She added: “The women graduate from the best service academies in the country, complete the toughest combat training programs, deploy overseas, serve alongside men and integrate into combat teams. base, including infantry … The project, if it is reinstated, should reflect that same judgment. ”
But the Biden administration urges judges not to intervene at this point, noting that in March 2020, the National Commission on National and Public Military Service, created by Congress, released a report recommending that Congress eliminate the registration reserved for men and to expand the project. eligibility for all persons “of the applicable age”.
Acting Solicitor General Elizabeth Prelogar told justices that since the recommendation is “under consideration” by the current Congress, any reconsideration of the constitutionality of the male-only registration requirement would be “premature for the moment”.
“The attention of Congress on the matter may soon eliminate any need for the court to tackle this constitutional question,” Prelogar said.