On Monday, the Supreme Court ducked an issue that ACLU lawyer Ria Mar called “one of the last sex-based classifications in federal law.” That sex-based classification is the requirement of the Military Selective Service Act (MSSA) that all men, but no women, register with the Selective Service System when they turn 18. Failure to do so can result in a federal felony conviction punishable by up to five years in prison and a $250,000 fine. A felony on a man’s record loses him the right to vote in 44 states. It also loses him the ability to work in a wide variety of professions and occupations. Women of course have the option to serve in the armed forces if they so choose and gain the many benefits of having done so, but not the obligation of registering.
A federal district court in Houston had ruled the law an unconstitutional violation of the Due Process clause of the Fifth Amendment. The Appeals Court for the Fifth Circuit reversed that ruling, making the case appropriate for decision by the nation’s highest court.
But the Supreme Court refused the appellant’s petition for a writ of certiorari, leaving in place a law that, on its face and in light of the court’s prior ruling on the issue, is unconstitutional.
Back in 1981, in the case of Rostker vs. Goldberg, the law was challenged on due process grounds and a 6-3 majority ruled that it passed constitutional muster. It did so for the most dubious of reasons.
In Rostker, the court said that, since the armed forces prohibited women from serving in combat roles and, since the purpose of military conscription is to supply combat personnel to fight the nation’s wars, “men and women are simply not similarly situated for purposes of a draft or registration for a draft,” and therefore the explicit discrimination in the law did not violate due process.
That was nonsense, even at the time. The simple fact, then as now, is that, in wartime, only about 25% of military personnel are actually involved in combat; the rest serve support functions. As such, a gender-equal registration law would have provided any war effort with female support personnel that in turn would have made more men available for combat. In short, it would have been a win for everyone. Men would have seen that warfare isn’t their job alone, women would have understood that they’re equal under the law and the military would have had more personnel with which to defend the country. What’s not to like? The Rostker court never addressed those salient facts.
To me, Rostker looks like nothing but a dodge, a point made by two of the dissenting justices. The Court wasn’t about to require women to register, so it found an excuse not to. But whatever the case, the nut of the matter was the statutory prohibition against women serving in combat. The decision turned on that fact.
But, by 2013, that fact had changed. Then-Secretary of Defense Leon Panetta issued a ruling allowing women to seek and hold combat jobs in all branches of the armed services. Since then, thousands of women have done just that and today there are no jobs in the military that are not available to, and held by, women. Yes, the MSSA remains the same, since Panetta had no power to change it, but he and the armed services have effectively (dare I say it?) neutered it.
The upshot of all that is that the core of Rostker no longer exists. The military allows women to serve in combat roles. The 1981 ruling that, because women were prohibited from serving in combat, they and men were “not similarly situated,” is no longer true. Women’s statutory exemption from registering with the SSS now has no factual support. Rostker was badly decided, but today’s “facts on the ground” render it a dead letter, or should.
Nevertheless, the Supreme Court punted. It did so under the thinnest and shabbiest of pretenses. It seems Congress is considering amending the statute to be gender neutral, so the justices rejected the appellant’s writ request.
Now, some of us would point out that, on the day the suit was filed, all the way to the day the Court rejected it, the law was the law, irrespective of what Congress may or may not do at some unspecified time in the future. Congress may consider changing the MSSA for the next 100 years. Would the court decline to make a ruling during all that time? In legalese, the case was ripe for adjudication; there was a “case or controversy,” an existing law that invidiously discriminates against men. So why not rule the law unconstitutional and require Congress to pass a new one? In her statement on the matter, Justice Sotomayor, joined by Kavanaugh and Breyer, offered no hint.
Whereupon, we come to the lamest excuse of all – that the Court owes Congress “deference” in matters regarding the military and national security. It’s an old doctrine and, in many cases, makes sense. We don’t want unelected nine justices second-guessing military experts about military matters.
But of course, nothing of the sort would have, or could have, occurred in this case, had the Court simply ruled. As noted before, the military has already decided the issue of who may serve in combat – every physically and mentally-qualified person can - so a Supreme Court ruling that does nothing more than support that decision by requiring women to register would have been entirely in accord with existing military practice.
The irony of the whole thing is that Monday the Court did exactly what it foreswore in Rostker. For the majority, Justice Rehnquist wrote in 1981,
Announced degrees of "deference" to legislative judgments,… which this Court announces that it applies to particular classifications made by a legislative body, may all too readily become facile abstractions used to justify a result.
They may and, on Monday, they did. As in 1981, the justices didn’t want to force women to register, so they pretended that the issue was one for Congress and Congress alone, which of course is simply untrue. The Supreme Court exists in large part to keep congressional actions within constitutional bounds. It’s been that way since Marbury vs. Madison. You’d think they’d know.