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Md. women’s group calls men-only registration unconstitutional

FILE - In this Sept. 18, 2012 file photo, female soldiers from 1st Brigade Combat Team, 101st Airborne Division train on a firing range while testing new body armor in Fort Campbell, Ky. A federal appeals court in New Orleans upheld the constitutionality of the all-male military draft system Thursday, Aug. 13, 2020, citing a 1981 U.S. Supreme Court decision. The 5th U.S. Circuit Court of Appeals in New Orleans said “only the Supreme Court may revise its precedent.” (AP Photo/Mark Humphrey, File)

In this Sept. 18, 2012 photo, female soldiers from 1st Brigade Combat Team, 101st Airborne Division train on a firing range while testing new body armor in Fort Campbell, Kentucky. A Maryland women’s rights group is joining a lawsuit urging the Supreme Court to strike down a federal rule that only men can be required to register for a military draft. (AP File Photo/Mark Humphrey)

A Maryland women’s rights group is urging the U.S. Supreme Court to strike down as unconstitutional a federal requirement that only men register for the military draft.

The Women’s Law Center of Maryland Inc. has joined a high court brief that derides the men-only mandate as being based on “invidious stereotypes and archaic generalizations” that treat women as second-class citizens in violation of the Constitution’s guarantee of equal protection under the law.

“The classification embodied in the Military Selective Service Act – requiring men to register but not women – reflects a familiar stereotyping of sex roles: Women are meant to be left at home to care for the family, while men are meant to go to war to fight for their country,” stated the brief filed with the Supreme Court last week.

“This division of roles between women who need protection and the men who can provide it can no longer be maintained,” added the brief, principally filed by the National Organization for Women. “(C)ongress’s decision to exclude women from the male-only registration requirement denies women a key aspect of their citizenship. To reap equal rewards of citizenship, women must equally bear its burdens.”

The Maryland center joined NOW’s filing in support of a men’s rights group’s request that the Supreme Court review and strike down the act’s requirement that only men register for the draft.

Specifically, the National Coalition for Men is urging the justices to overturn their 1981 decision in Rostker v. Goldberg that the male-only registration requirement is constitutional because only men were eligible for combat. That constitutional justification, however, ended in 2013 when the Defense Department lifted the ban on women in combat, the coalition stated in its petition for high court review.

The federal government has until March 15 to respond to the coalition’s petition. The Supreme Court has not stated when it will vote on the coalition’s request for review.

The case is docketed at the high court as National Coalition for Men et al. v. Selective Service System, No. 20-928.

The coalition is being represented at the Supreme Court by the American Civil Liberties Union.

Earlier in the coalition’s litigation, the federal government defended the statutory men-only registration requirement, saying “Congress is entitled to extremely wide deference when it legislates with regard to military affairs, even when Congress draws distinctions that would otherwise trigger heightened scrutiny in the civilian context.”

For example, “Congress rationally could have concluded that women’s eligibility for combat positions would not make them just as likely as men to serve in combat positions in the event of a draft,” the government added when the case was before the 5th U.S. Circuit Court of Appeals. “Thus, based on the same practical and administrative concerns that Rostker itself blessed, Congress reasonably could have understood that the two sexes were not similarly situated for registration purposes.”

In the NOW brief it joined, the Maryland center stated that Rostker was wrongly decided 40 years ago because the act’s gender-based registration requirement was never “substantially related” to the “important” governmental interest of national security. Women have always held critical noncombat positions in the military, including during times of war, and should never have been discriminated against in the Military Selective Service Act, the brief stated.

“By excluding women from an essential obligation of citizenship – the duty to serve one’s country in its time of need – Congress perpetuated the myth that women are unnecessary to the nation’s national security, reflecting stereotypical attitudes towards the roles of men and women that have no relation to the government’s interest in military readiness and that perpetuate the legal, social, and economic inferiority of women,” the brief stated.

“By 1981, the (Supreme) Court had already recognized how damaging this type of sentiment was – and is – to women,” the brief added. “In Rostker, it had the opportunity to extent that reasoning to the military context. It should have taken it.”

Michelle Daugherty Siri, the Maryland center’s executive director, said Monday that “sex discrimination has no place in our federal laws. The Women’s Law Center feels very strongly that it needs to be addressed.”

NOW and the center were joined in the brief by the Women’s Law Project, Gender Justice,  and the KWH Law Center for Social Justice and Change

The National Coalition for Men is seeking Supreme Court review of the New Orleans-based 5th Circuit’s decision last year that the men-only registration requirement remains constitutional under Rostker until the justices rule otherwise.

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