In January 2013, Secretary of Defense Leon Panetta ordered the armed services to lift the ban on women serving in combat roles in the military. The services were ordered to study the issue and develop an implementation plan by January 2016. In December 2015, Secretary of Defense Ashton Carter announced that the military would be opening all “remaining occupations and positions to women,” with “no exceptions,” effective January 2016. Yet, to this day, women are still not required to register for the draft. Could this change in 2021? The draft ended in 1973, but in 1980, President Jimmy Carter reinstated the requirement that men must register with the Selective Service System. According to the Selective Service System: Selective
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In January 2013, Secretary of Defense Leon Panetta ordered the armed services to lift the ban on women serving in combat roles in the military. The services were ordered to study the issue and develop an implementation plan by January 2016. In December 2015, Secretary of Defense Ashton Carter announced that the military would be opening all “remaining occupations and positions to women,” with “no exceptions,” effective January 2016.
Yet, to this day, women are still not required to register for the draft. Could this change in 2021?
The draft ended in 1973, but in 1980, President Jimmy Carter reinstated the requirement that men must register with the Selective Service System.
According to the Selective Service System:
Selective Service registration is required by law as the first part of a fair and equitable system that, if authorized by the President and Congress, would rapidly provide personnel to the Department of Defense while at the same time providing for an Alternative Service Program for conscientious objectors. By registering, a young man remains eligible for jobs, Federal student aid, State-based student aid in 31 states, Federally-funded job training, and U.S. citizenship for immigrant men.
The Selective Service System and the registration requirement for America’s young men provide our Nation with a structure and a system of guidelines which will provide the most prompt, efficient, and equitable draft possible, if the country should need it. America’s leaders agree that despite the success of the All-Volunteer Force, registration with Selective Service must continue as a key component of national security strategy.
Why should any young man register for the draft? Again, according to the Selective Service System:
- Registration is the law.
- By registering all eligible men, Selective Service ensures a fair and equitable draft, if ever required.
- The Selective Service System is a relatively low-cost insurance policy for our nation.
- It’s a civic duty of every young man to comply with the law.
- By registering, a young man stays eligible for jobs, college loans and grants, job training, driver’s license in most states, and U.S. citizenship for immigrant men.
- Men who fail to register with Selective Service may be ineligible for opportunities that may be important to their future.
- The U.S. Citizenship and Immigration Services (USCIS) makes registration with Selective Service a condition for U.S. citizenship if the man first arrived in the U.S. before his 26th birthday.
- A man must be registered to be eligible for jobs in the Executive Branch of the Federal Government and the U.S. Postal Service.
- If required to register with Selective Service, failure to register is a felony punishable by a fine of up to $250,000 and/or 5 years imprisonment.
The National Commission on Military, National, and Public Service (NCMNPS), in its final report, recommended Congress amend the Military Selective Service Act to require that young women, as well as young men, register for the draft when they reach 18 years of age, and inform the Selective Service System each time they change their address until their 26th birthday.
Joe Biden supports making women register for Selective Service. In answer to the question:
Relatively few Americans have served in the military, and many have no interaction with servicemembers, leading to what’s termed the military-civilian divide. What would you do to promote military service? What changes, if any, would you make to the Selective Service System?
The United States does not need a larger military, and we don’t need a draft at this time. The all-volunteer force has been a source of strength for decades. I would, however, ensure that women are also eligible to register for the Selective Service System so that men and women are treated equally in the event of future conflicts. We should explore targeted recruiting efforts to build a military that is more geographically and demographically representative of the nation as a whole and that has the skill sets needed for modern warfare.
But on the other hand, buried deep inside the $2.3 trillion, 5,593-page spending bill signed into law by President Trump late last year that no member of Congress had read, the “Consolidated Appropriations Act, 2021” (H.R.133), which is a combination of twelve annual funding bills, COVID-19 relief, and assorted pork, the “Solomon Amendment” linking federal student aid to Selective Service registration was repealed:
Notwithstanding section 12(f) of the Military Selective Service Act (50 U.S.C. 3811(f)), an individual shall not be ineligible for assistance or a benefit provided under this title if the individual is required under section 3 of such Act (50 U.S.C. 3802) to present himself for and submit to registration under such section and fails to do so in accordance with any proclamation issued under such section, or in accordance with any rule or regulation issued under such section.
Is this the first step toward the elimination of draft registration for men or will women be required to register for the draft in 2021? The NCMNPS report and the repeal of the Solomon Amendment are sending mixed signals.
In the case of Rostker v. Goldberg (1981), the Supreme Court upheld the constitutionality of the government requiring men but not women to register for the draft, relying on the fact that women were then ineligible to serve in combat positions. That case is being challenged by the National Coalition for Men (NCFM), a men’s rights organization. After the DOD opened up combat roles to women, the NCFM sued in federal court, arguing that either men and women should be required to register for the draft or neither men nor women should be required to register. A federal district court in Houston in 2019 found that the current law requiring men to register for the draft but not women was unconstitutional. However, the 5th Circuit Court of Appeals in New Orleans overturned that decision in 2020. A petition for a writ of certiorari was filed with the Supreme Court on January 8 of this year. The plaintiffs are asking the Court to overrule Rostker v. Goldberg because its “fundamental premise is not longer true,” and “hold that hold that the federal requirement that men but not women register for the Selective Service, authorized under 50 U.S.C. § 3802(a), violates the right to equal protection guaranteed by the Fifth Amendment.” The plaintiffs are not seeking the government to require that women register for the draft, only that the current registration requirement is unconstitutional.
But, as the plaintiffs’ petition acknowledges:
Should the Court declare the men-only registration requirement unconstitutional, Congress has consider-able latitude to decide how to respond. It could require everyone between the ages of eighteen and twenty-six, regardless of sex, to register; it could rescind the registration requirement entirely; or it could adopt a new approach altogether, such as replacing the MSSA’s registration requirement with a more expansive national service requirement.
In a surprising twist, the plaintiffs are represented by the ACLU, which believes that “as long as the government requires young people to register for the draft, requiring men but not women to do so is sex discrimination.” Limiting registration to men:
- Sends a message that women are unqualified to serve in the military, regardless of individual capabilities and preferences.
- Reflects an outmoded view that, in the event of a draft, women’s primary duty would be to the home front — and, on the flip side, that men are unqualified to be caregivers.
- Devalues the contributions of women who serve in the military.
But if the draft is bad, as the ACLU believes, then the government requiring men to register for the draft and not women is better than the government requiring both men and women to register for the draft.
It seems to me that if the Supreme Court rules that male-only draft registration is unconstitutional, then we would be one step closer to Congress requiring that women register for Selective Service. At least now only men can be drafted. This attempt by the NCFM and the ACLU to get the Court to declare the draft unconstitutional could backfire. The Court can just declare that the male-only draft is government sex discrimination and is therefore unconstitutional. It is a stretch to think that the Court will also declare that the draft itself is unconstitutional.
If the Court declares that male-only draft registration is unconstitutional, then it will be up to Congress to act. I can’t see Congress eliminating the Selective Service registration requirement. I think it is more likely that Congress expands draft registration to women rather than eliminating draft registration altogether. If the Court doesn’t rule on the case, then things are just as they are now. And it is better that it continues this way rather than women being subject to draft registration.