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US considers expansion to selective service to be gender neutral

A U.S. Army soldier looks onto Baghdad from a perimeter guardhouse of the International Zone on May 30, 2021 in Baghdad, Iraq. (Photo by John Moore/Getty Images)

The U.S. Supreme Court recently passed up on the opportunity to decide that women ought to have to register for the draft at age 18, just the way men do. Rob McKenna, former state attorney general, explains why they passed on this.

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“Well, as Justice Sotomayor wrote in a statement, which they normally don’t issue, … but she issued a statement that Justice Kavanaugh joined and Justice Breyer also joins basically boiling down to the court’s, quote, ‘long-standing deference to Congress on matters of national defense and military affairs,'” McKenna said. “But also citing the fact that Congress is actively considering this very issue: Should selective service be made gender neutral and apply to everybody in the country?”

“I think the court is not willing to step into this when it’s obvious that Congress is thinking about making a change to the law,” he added.

The case was brought before the court by the National Coalition for Men and others, as well as by the ACLU.

“I’m not clear on whether the argument is that this is unfair to men or it’s unfair to women,” McKenna said. “But one of the arguments that they make in their … petition for review … is that this idea that women can’t be drafted really is not good for them because it sends a message about their role in society and whatnot.”

“But the main argument that they make in the case they brought in the District Court and then went to the Fifth Circuit, is that the Supreme Court’s earlier ruling from 1981 a case called Rostker, in which a challenge to selective service being limited to men was also brought — the basis for the Supreme Court’s decision upholding that law has changed.”

In that 1981 case, the Supreme Court said men and women were not similarly situated because, at the time, women were excluded from combat roles.

“That’s changed,” McKenna said. “As Justice Sotomayor noted in her statement, the role of women began to change dramatically back in 1991, and by 2012 or ’13, the prohibition against women in combat was officially lifted. Or I guess it was as of 2015.”

“So as she’s put it, as of 2015, there are no longer any positions in the United States Armed Forces closed to women. So that, according to the petitioners — National Coalition of Men, ACLU — sort of pulls the rug out from under the earlier decision, Rostker, which based its ruling on the fact that women were at that time excluded from combat.”

McKenna thinks part of the reason why Justice Sotomayor issued a statement was to make it clear that declining to review this case was not a comment on whether women should be in combat.

“They were just saying we’re going to defer to the legislative branch here,” he noted. “And there was kind of a hint in her statement that we’re watching this. But since Congress seems to be moving in this direction, let’s let Congress fix it as a legislative matter and not decide that it’s a violation of the Fifth Amendment for women to be excluded, which is essentially what they would have to find, because the Fifth Amendment to the United States Constitution prohibits the federal government from discriminating on the basis of sex unless there’s a, quote, ‘exceedingly persuasive justification.'”

“And if women are in combat, it would appear there is no longer a persuasive justification for excluding them from selective service,” McKenna added.

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So is Congress likely to act to draft women, and will stand up to legal scrutiny?

“I don’t think there’s going to be any constitutional problem if selective service is made gender neutral, because the argument that’s being brought in the case the Supreme Court just decided not to hear is that it’s discriminatory that it only applies to men,” McKenna said. “And that’s the same argument that was made in Rostker v Goldberg back in 1981 where several young men who were subject to the draft registration requirement challenged it as unlawful sex discrimination.”

“If you make it gender neutral, then by definition there is no discrimination based on sex,” he added.

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