National Coalition for Men v. Selective Service System ( 2021 )

Cite as: 593 U. S. ____ (2021) 1
Statement of SOTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
NATIONAL COALITION FOR MEN, ET AL. v.
SELECTIVE SERVICE SYSTEM, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 20–928. Decided June 7, 2021
The petition for a writ of certiorari is denied.
Statement of JUSTICE SOTOMAYOR, with whom JUSTICE
BREYER and JUSTICE KAVANAUGH join, respecting the de-
nial of certiorari.
The Fifth Amendment to the United States Constitution
prohibits the Federal Government from discriminating on
the basis of sex absent an “ ‘exceedingly persuasive justifi-
cation.’ ” Sessions v. Morales-Santana, 582 U. S. ___, ___
(2017) (slip op., at 9) (quoting United States v. Virginia, 518
U. S. 515, 531 (1996)); see Califano v. Westcott, 443 U. S. 76(1979); Califano v. Goldfarb, 430 U. S. 199 (1977); Wein-
berger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero v. Rich-
ardson, 411 U. S. 677 (1973). Cf. Bolling v. Sharpe, 347
U. S. 497 (1954). The Military Selective Service Act re-
quires men, and only men, however, to register for the draft
upon turning 18. See 85 Stat. 353, 50 U. S. C. §3802(a). In
Rostker v. Goldberg, 453 U. S. 57 (1981), this Court upheld
the Act’s gender-based registration requirement against an
equal protection challenge, citing the fact that women were
“excluded from combat” roles and hence “would not be
needed in the event of a draft.” Id., at 77.
The role of women in the military has changed dramati-
cally since then. Beginning in 1991, thousands of women
have served with distinction in a wide range of combat
roles, from operating military aircraft and naval vessels to
participating in boots-on-the-ground infantry missions. See
Brief for Modern Military Association of America et al. as
2 NATIONAL COALITION FOR MEN v.
SELECTIVE SERVICE SYSTEM
Statement of SOTOMAYOR, J.
Amici Curiae 11–18. Women have passed the military’s de-
manding tests to become U. S. Army Rangers, Navy SEALs,
and Green Berets. See Brief for General Michael Hayden
et al. as Amici Curiae 11–13. As of 2015, there are no longer
any positions in the United States Armed Forces closed to
women. See Memorandum from Secretary of Defense to
Secretaries of the Military Departments et al. Re: Imple-
mentation Guidance for the Full Integration of Women in
the Armed Forces 1 (Dec. 3, 2015). Petitioners ask the
Court to overrule Rostker in light of these developments.
Petitioners, however, are not the only ones asking
whether a male-only registration requirement can be rec-
onciled with the role women can, and already do, play in the
modern military. In 2016, Congress created the National
Commission on Military, National, and Public Service
(NCMNPS) and tasked it with studying whether Selective
Service registration should be conducted “regardless of
sex.” National Defense Authorization Act for Fiscal Year
2017, §§551(a), 555(c)(2)(A), 130 Stat. 2130, 2135.
On March 25, 2020, the Commission released its final re-
port, in which it recommended “eliminat[ing] male-only
registration.” Inspired to Serve: The Final Report of the
[NCMNPS] 111. Among other things, the Commission
found that “[m]ale-only registration sends a message to
women not only that they are not vital to the defense of the
country but also that they are not expected to participate in
defending it.” Id., at 118. Just a few months ago, the Sen-
ate Armed Services Committee held a hearing on the re-
port, where Chairman Jack Reed expressed his “hope” that
a gender-neutral registration requirement will be “incorpo-
rated into the next national defense bill.” Tr. of Hearing on
Final Recommendations and Report of the [NCMNPS] be-
fore the Senate Committee on Armed Services, 117th Cong.,
1st Sess., 21 (Mar. 11, 2021).
It remains to be seen, of course, whether Congress will
end gender-based registration under the Military Selective
Cite as: 593 U. S. ____ (2021) 3
Statement of SOTOMAYOR, J.
Service Act. But at least for now, the Court’s longstanding
deference to Congress on matters of national defense and
military affairs cautions against granting review while
Congress actively weighs the issue. I agree with the Court’s
decision to deny the petition for a writ of certiorari.