What would RBG think?

What would RBG think? It would be difficult for at least some U.S. Supreme Court justices not to think about the late Justice Ruth Bader Ginsburg when the court soon takes its first look at a challenge to one of the last sex-based classifications in federal law—the male-only draft registration.

At the age of 18, every man has 30 days to register with the Selective Service. For the second time in 40 years, the registration requirement faces a serious challenge in the Supreme Court as unlawful sex discrimination.

The nation’s first peacetime draft law was signed in September 1940. It was suspended in early 1975, but in late 1979 efforts began to upgrade the Selective Service System’s ability to mobilize quickly in an emergency. In 1980, the registration requirement resumed.

Shortly after registration began again, the law was challenged in the case Rostker v. Goldberg.  The group of young men claiming that the requirement violated the Equal Protection Clause was represented by the Women’s Rights Project of the American Civil Liberties Union. Ginsburg was a founder and director of that project from 1972 until her appointment as a judge on the U.S. Court of Appeals for the D.C. Circuit in 1980.

The court in 1981 ruled against the male challengers in a 6-3 decision by then Justice William Rehnquist. The three dissenters were Justices Byron White, Thurgood Marshall, and William Brennan.

The majority said that congressional testimony and legislative history showed the purpose of registration was to prepare for a draft of combat troops. Congress had determined that women as a group, unlike men as a group, were not eligible for combat, and Congress was within its constitutional authority to order only male registration.

Justice Marshall, in his dissenting opinion, wrote: “The Court today places its imprimatur on one of the most potent remaining public expressions of ‘ancient canards about the proper role of women.’ It upholds a statute that requires males, but not females, to register for the draft, and which thereby categorically excludes women from a fundamental civic obligation.”

There is a Ginsburg connection to that case even though at the time, she was no longer with the ACLU. Despite the unfavorable ruling, the majority applied a tougher standard of review to the sex-based classification being challenged in 1981. It was a standard established by the court in a case called Craig v. Boren in 1976 and for which Ginsburg had advocated as an ACLU lawyer. She had advised the plaintiff’s lawyer in that case and had sat with him at counsel’s table for his argument in the Supreme Court.

Forty years after Rostker, the ACLU’s Women’s Rights Project, directed by Ria Tabacco Mar, is back in the Supreme Court with National Coalition For Men v. Selective Service System, challenging again the male-only draft registration.

Much has changed in the military in 40 years. “Rostker’s fundamental premise,” that men-only registration was justified by the exclusion of women from combat roles, “is no longer true,” and the decision should be overruled, Mar tells the justices on behalf of the National Coalition for Men.

In 2013, the Secretary of Defense and the chairman of the Joint Chiefs of Staff rescinded a 1994 rule barring women from serving in roles that “engaged in direct combat on the ground.” In 2015, the Department of Defense announced that all military roles, units, and schools would officially be open to women with “no exceptions.”

Since then, Mar writes in her brief, thousands of women have served in combat roles throughout the service branches. The men-only registration requirement, she adds, “imposes selective burdens on men, reinforces the notion that women are not full and equal citizens, and perpetuates stereotypes about men’s and women’s capabilities.”

The Biden administration’s Justice Department is opposing review of the challenge by the justices. In 2017, Congress created a commission to study registration of women. Last year, the commission released its final report and recommended that Congress “eliminate male-only registration and expand draft eligibility to all individuals of the applicable age cohort.”

“Congress is actively considering the scope of the registration requirement, and Rostker itself made clear that the Court should defer to Congress where possible in this sensitive military context,” the department tells the justices.

Waiting for Congress to fix a decades-old constitutional violation is not what the challengers are willing to do. Congress “has had multiple opportunities over the last four decades to act. It has done nothing,” Mar wrote in reply to the government’s argument. “Its 2016 decision to appoint a commission to spend years studying the issue—and then farm out the latest bill addressing it to thirteen different committees—says it all.”

Mar argues that a decision in her client’s favor would not usurp Congress’ role with respect to military readiness because it would only take men-only registration off the table, leaving Congress to decide whether to require everyone to register or find an alternative system.

The challengers have drawn supporting “friend-of-the-court” briefs from a number of retired, high-ranking military officers, Modern Military Association of America, Service Women’s Action Network, Protect Our Defenders Reserve Organization and others.

One opposing friend-of-the-court brief has been filed by the Center for Military Readiness, Eagle Forum, Concerned Women for America and five retired officers.

What would RBG think?

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.