Story at a glance

  • President Biden’s administration is asking the Supreme Court to hold off on hearing a case regarding the constitutional basis of a male-only military draft.
  • Solicitor General Elizabeth Prelogar wrote in a court brief that the court's role at this time “would be premature.”
  • “Congress’s attention to the question may soon eliminate any need for the court to grapple with that constitutional question,” Prelogar wrote.

President Biden’s administration is asking the Supreme Court to hold off on hearing a case regarding the constitutional basis of a male-only military draft. 

The request was made given that Congress is currently reviewing the matter, Solicitor General Elizabeth Prelogar wrote in a court brief, The Washington Post reported. Prelogar wrote that the court's role at this time “would be premature.” 

“Congress’s attention to the question may soon eliminate any need for the court to grapple with that constitutional question,” Prelogar wrote.

The Post reported that the brief does not indicate a specific view from the president or defend the status quo. 


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The military rescinded its ban on women in combat in 2013 with all positions becoming available in 2015, according to the Post. A group of former generals defended the move, saying circumstances in warfare have changed and warranted an updated view. 

“Warfare today requires intelligence and communication specialists, linguists, logisticians, medical personnel, drone and cyber operators, and more,” their brief says. “Noncombat positions comprise nearly 80% of today’s military occupations.”

The American Civil Liberties Union (ACLU) is representing two men and the National Coalition For Men in the matter. In its brief to the court, the ACLU said the draft “imposes selective burdens on men” and “reinforces the notion that women and men are not full and equal citizens,” The Post reported. 

Director of the ACLU’s Women’s Rights Project Ria Tabacco Mar wrote in January that the male-only draft is one of the “last examples of overt sex discrimination written into our federal law.” Mar explained that like other exclusionary practices, the law claims to protect women. But instead it only restricts women's civic engagement 

“Like many laws that appear to benefit women, men-only registration harms women, too,” Mar wrote. “Limiting registration to men treats women as unfit for this obligation of citizenship and reflects the outmoded belief that men aren’t qualified to be caregivers in the event of a draft."

Mar told The Post that the administration’s stance in the brief is revealing. 

“Noticeably absent from the government’s brief is any argument that men-only registration is constitutional,” Mar said. “That is not surprising given that men-only registration is outdated, based on gender stereotypes, and no longer recommended by the military itself.”

A congressional commission said last year requiring women to register for the draft would allow the government to “draw on the talent of a unified nation in a time of national emergency,” The Post reported. 


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Published on Apr 16, 2021