Female recruits at Camp Pendleton
Recruits from Marine Corps Recruit Depot San Diego participate in the grueling crucible training as they become the first ever women Marines trained at Camp Pendleton. REUTERS/Mike Blake

The U.S. Supreme Court on Monday declined to hear a challenge by a San Diego men’s rights group to the national requirement that men, but not women, register for the military draft at age 18, focusing on whether the policy violates the Constitution’s guarantee that laws apply equally to everyone.

The justices turned away an appeal by the National Coalition for Men, backed by the American Civil Liberties Union, of a lower court ruling upholding the policy. The lawsuit was aimed at invalidating a 1948 U.S. law that compels only men to register for potential military service.

Liberal Justice Sonia Sotomayor issued a statement noting that a commission set up by Congress last year recommended ending the male-only draft and that Congress could act on it.

Sotomayor wrote that 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.”

Liberal Justice Stephen Breyer and conservative Justice Brett Kavanaugh signed on to Sotomayor’s opinion.

By rebuffing the appeal, the justices left in place the lower court ruling and a 1981 Supreme Court precedent that had upheld the law in part because women at that time were prohibited from serving in combat roles in the armed forces.

The Pentagon in 2013 lifted the official ban on women in combat. ACLU lawyers had argued that it made little sense that in light of that policy shift women were not required to register for the draft alongside men.

The military draft was discontinued in 1973 amid the tumult of the Vietnam War era. But men still are required to register and can face penalties for refusing.

The men’s rights group as well as two individuals — James Lesmeister, a Texas-based graduate student, and Anthony Davis, who lives in San Diego, — in 2013 sued the Selective Service System, the federal agency that administers the database. They argued that the male-only requirement amounted to sex discrimination in violation of the constitutional promise of equal protection under the law.

“The registration requirement has no legitimate purpose and cannot withstand the exacting scrutiny sex-based laws require,” ACLU lawyers said in court papers.

Texas-based U.S. District Judge Gray Miller in 2019 ruled in favor of the plaintiffs and declared the law unconstitutional. The New Orleans-based 5th U.S. Circuit Court of Appeals in 2020 reversed that ruling, saying lower courts were bound by the Supreme Court’s 1981 decision upholding the policy.

The 1948 law requires men, both U.S. citizens and lawful permanent residents, to sign up with the Selective Service System at age 18. Under the law, if there is a draft in place the registration information would be used to summon people ages 18 to 25 for military service.

The last draft call was held by lottery in 1972. During Richard Nixon’s presidency, active conscription was formally ended the next year — fulfilling one of his campaign pledges – and the all-volunteer military was born.

The National Coalition For Men has said forcing men but not women to register is “an aspect of socially institutionalized male disposability” and helps to reinforce stereotypes that buttress what it called bias against men in child custody, divorce, criminal sentencing, public benefits, domestic violence services and other areas.

President Joe Biden’s administration has defended the 1948 law, as did the administration of his predecessor Donald Trump.

Biden’s administration had urged the court not to take up the appeal, noting not only that Congress already is considering whether to change the all-male registration but also that there were questions about whether the challengers had proper legal standing to sue.