Patterico's Pontifications

4/15/2021

Biden To Supreme Court: Don’t Take Up Lawsuit Calling All-Male Military Draft Unconstitutional

Filed under: General — Dana @ 10:56 am



[guest post by Dana]

Is eliminating all sex-based classifications a good thing?

The Biden administration has asked the Supreme Court not to take up a lawsuit that calls the all-male military draft unconstitutional.

Because Congress is considering whether women should also be required to sign up, Acting Solicitor General Elizabeth B. Prelogar said in a brief to the court, “any reconsideration of the constitutionality of the male-only registration requirement . . . would be premature at this time.”

The brief does not state whether President Biden thinks women should be included, nor does it defend the current system, which requires only men ages 18 to 26 to submit their information should a military draft be needed again.

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

The American Civil Liberties Union, representing two men and a group called the National Coalition for Men, challenged the men-only requirement as “one of the last sex-based classifications in federal law.”

According to the ACLU’s brief:

It 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.

Additionally:

Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project, said the result was telling.

“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 “That is not surprising given that men-only registration is outdated, based on gender stereotypes, and no longer recommended by the military itself.”

Further, Mar pointed out that Congress has had 40 years to act on this, and has never gotten around to it, thus the need for the Court to act:

“President Carter made the same ask in 1980, and Congress hasn’t fixed the problem despite having 40 years to do so,” she said. “It’s long past time for the Supreme Court to declare that men-only registration is unlawful sex discrimination.”

Note that in 2013, the military lifted a ban on women in combat. This was followed by all jobs opening up to women in 2015.

–Dana

41 Responses to “Biden To Supreme Court: Don’t Take Up Lawsuit Calling All-Male Military Draft Unconstitutional”

  1. Hello.

    Dana (fd537d)

  2. I think it’s only logical to have men on the front lines, but this is the end result of using the military as a social experiment instead of as a fighting force.

    NJRob (bcf790)

  3. It’s one thing to allow women to volunteer for combat, it’s another thing to draft them, and the effect on families s different..

    The United States is probably never going back to a draft. The military also has standards that a substantial fraction of 18 year olds don’t meet. Even if a draft is somehow instituted, the list won’t be used.

    This lawsuit is maybe being brought to ensure that. The pre-registration should have been dropped log ago, but everybody was afraid of the symbolism.

    President Carter re-started the draft registration in 1980 – President Biden probably wants to end it. This needs checking.

    Sammy Finkelman (6975b4)

  4. “using the military as a social experiment”

    Nonsense.

    Davethulhu (6ba00b)

  5. Women are already in combat units and have been since 2015.

    Rip Murdock (3e2319)

  6. @2. It wouldn’t have hurt Liz Cheney to be stationed at a NORAD base in the Aleutians as a ‘Permanent Latrine Orderly’ a la “Will Stockdale” for a year or two. 😉

    DCSCA (f4c5e5)

  7. It’s not too late to get in on the SCOTUS March Madness: Pick the greatest justice of all time, now in the final round (Marshall vs Warren)

    https://www.scotusblog.com/2021/04/the-great-chief-and-the-super-chief-a-final-showdown-in-supreme-court-march-madness/

    Kevin M (ab1c11)

  8. I really want to see the Solicitor-General take a side here.

    Kevin M (ab1c11)

  9. The United States is probably never going back to a draft. The military also has standards that a substantial fraction of 18 year olds don’t meet. Even if a draft is somehow instituted, the list won’t be used.

    There is a list, and all 18yo men must register. If they’re old enough to vote, they’re old enough to fight (to paraphrase another argument). The question is whether 18yo women must register, too.

    Nothing requires both men and women to serve in areas they are unsuited to, just as nothing requires all men to be randomly assigned. Some go into combat, some stay at HQ. Draftees would be assigned as they always were — where it makes sense to the Army.

    As for calling people up, and some being unq1ualified, it depends on how many you need and what your hurry is. It may be that, after the regular army and the reserves, you know you will need more so you get them training.

    What would you suggest if you needed manpower and volunteers weren’t enough?

    Kevin M (ab1c11)

  10. “While the United States still has the military draft to rely on if a national emergency or war makes this scenario necessary, no American has been drafted since 1972. To this day, female Americans are still not liable for the draft, a situation that would almost assuredly change if the Equal Rights Amendment was ever passed.”- source, historian headlines.com

    What do you feed your Pet Rock, Joe?

    DCSCA (f4c5e5)

  11. I think it’s only logical to have men on the front lines, but this is the end result of using the military as a social experiment instead of as a fighting force.

    Israel doesn’t think that, and they SURE aren’t using their defense force as a social experiment.

    Kevin M (ab1c11)

  12. Equality is a door that swings both ways.

    Hoi Polloi (093fb9)

  13. While I don’t like the idea of women having to register, I recognize that is based on some old-fashioned view of men and women and not really based in logic. While I think there are certainly obvious difference between men and women as far as strength goes, I don’t see why women shouldn’t have to sign up too. And actually, I think a mandatory one or two years of service for young men and women wouldn’t necessarily be a bad thing either.

    Dana (48d5e0)

  14. 9. Kevin M (ab1c11) — 4/15/2021 @ 12:15 pm

    What would you suggest if you needed manpower and volunteers weren’t enough?

    You’ll get volunteers in any situation where the war had support. Certainly enough to set up a system. And the initial volunteers will be the right kind of people.

    Canada did not institute a draft until 1944. Now that was because of Quebec but still.

    11. In Israel, women and men are not treated exactly the same in the IDF (assigned to all the same duties etc) and it’s easier for women to be excused from the draft.

    Sammy Finkelman (6975b4)

  15. I think a mandatory one or two years of service for young men and women wouldn’t necessarily be a bad thing either.

    Unless you were being shipped off to Khe Sanh in 1968.

    DCSCA (f4c5e5)

  16. In Israel, women and men are not treated exactly the same in the IDF (assigned to all the same duties etc) and it’s easier for women to be excused from the draft.

    Nor would they be here, as I already said. It is not “discrimination” to put stronger people on the front line and others not. We do that now with men. You had to qualify to land at Utah beach.

    Kevin M (ab1c11)

  17. You’ll get volunteers in any situation where the war had support.

    We had plenty of volunteers in December ’41. The war was VERY popular, but we still had a draft.

    Kevin M (ab1c11)

  18. I question these plaintiffs’ standing to bring the suit. Real men wouldn’t. All they need to do, anyway, is put on a dress (and they probably already do) and we’ll exempt them too.

    nk (1d9030)

  19. I really want to see the Solicitor-General take a side here.

    Here is the brief in opposition from the Selective Service System filed by the Acting Solicitor General and the Justice Department, so I doubt there will be a brief filed by Solicitor General that is any different. The SD usually files separately when the government is not a party.

    Here is a link to all the filings in the case.

    Rip Murdock (3e2319)

  20. If we are going to draft people into service, women should be signed up too. It would give more people available to serve and possibly greater flexibility for people who need deferments as well. And I agree with Dana that some kind of mandatory service wouldn’t necessarily be a bad idea. There are an awful lot of people out there that don’t understand that the world doesn’t revolve around them and a year or two of having to jump to someone else’ orders might help that.

    Nic (896fdf)

  21. Back when I was in high school and college, I used to argue that the fastest and easiest way to end the ban on gays in the military was for straight people to sue, claiming that the draft illegally discriminated in favor of gay people (because we effectively couldn’t be drafted).

    aphrael (4c4719)

  22. There are an awful lot of people out there that don’t understand that the world doesn’t revolve around them and a year or two of having to jump to someone else’ orders might help that.

    Okay, that made me chuckle.

    norcal (01e272)

  23. @21 🙂 I can just hear George Carlin saying that.

    norcal (01e272)

  24. @20. And I agree with Dana that some kind of mandatory service wouldn’t necessarily be a bad idea.

    But the Pentagon says they get a ‘better quality’ of recruit w/a volunteer military- peoplw who choose to jon- rather than the from the general rabble culled and forced in from general conscription. Vietnam told the story, especially as the war went sour and the U.S. was getting out. Just go back and review the history- or look at the films of shotgun bongs in the bush, incidents of fragging– and the Mỹ Lai massacre.

    DCSCA (f4c5e5)

  25. There are an awful lot of people out there that don’t understand that the world doesn’t revolve around them and a year or two of having to jump to someone else’ orders might help that.

    Yeah, the ‘lot of people’ who foot the bill: taxpayers. 😉

    Every time footage of those U.S. taxpayer purchased choppers being dumped overboard into the sea after landing on carriers and dumping off fleeing Vietnamese pilots and their families, you can’t hep but think of all the small and midsized towns in America which could have used those Hueys as medevac helicopters to save U.S. lives instead.

    DCSCA (f4c5e5)

  26. We had plenty of volunteers in December ’41.

    Yes, and even before December 7th. I’ve told this story here before, but who couldn’t use a refresher?

    Two of my uncles (brothers) enlisted in the Marine Corps on December 5, 1941. As the elder uncle was fond of saying, “Two days later, the Japanese retaliated.”

    The elder uncle ended up in Okinawa. The younger one spent the entire war as a clerk in Philadelphia, with a maid to iron his clothing, etc. People around him pooled their money in an attempt to get a woman to seduce him, but, good Mormon boy that he was, she was unsuccessful. 🙂

    The elder uncle was more of a playboy.

    One of these two uncles sent his military pay home to support his mother and her daughters, my mother being among them. The other uncle didn’t want any of his pay going home, because he didn’t want people to know his family was poor.

    Guess which uncle had the better heart? Yep. It was the playboy.

    norcal (01e272)

  27. @DCSCA@24 Service doesn’t necessarily mean military. There quite a few ways people could serve if we did a national service corp, not just militarily.

    @DCSCA@25 I’m not sure how that applies? And, alas, I was not in a position to watch any of that at the time.

    @norcal@26 My grandfather and his 2 brothers all served in the Army Air Corp, but they were upset that they had to be moved to separate theaters because of private Ryan and his brothers. One of them came home and married his sweetheart, one of them never married, and my grandfather brought home an exotic European war bride. I’ve heard that he wasn’t upset that they had to be separated for long. 😛

    Nic (896fdf)

  28. Yes, I’ll take exotic women over my brother on every day of the week ending in “y”!

    So, your grandmother was an fancy import, eh?

    norcal (01e272)

  29. @27. re., 24; That’s true, but mandatory conscription into a civilian type CCC or ‘Hitler Youth’ program [using that as a point of reference, not a blueprint] isn’t going to be very appealing to youngsters today plugged into internet distractions and freedoms. And given the recent history of GSA/BSA scouting, that’s not exactly appealing either.

    re., 25. It applies given the waste of resources– and you can find the footage on YouTube. Keep in mind the military is funded by taxpayers and not a for-profit enterprise. It’s a costly but necessary evil– and as an arm of government services works for the taxpayers, who, by choice, they “jump for.” Anecdotal, but my neighbor, a Marine, has had to leave his wife and kid several times and deploy to Afghanistan. He’s tired of it; transferred to an aviation PR group and has plans to leave the service. He’s just tired of the deployments– and the risk. They’re better connected to back home once there thanks to the web than in Vietnam times, and the live and eat comfortably in housing there when deployed– but outside the base ops, it’s the a miserable life for locals; like a beat up moon– and the risk remains… so he says.

    DCSCA (f4c5e5)

  30. @norcal@28 She is indeed (she’s 95). She is much the fanciest of my relatives. T-shrits are meant to be worn only under men’s dress shirts and one should iron one’s jeans.

    @DCSCA@29 Trade service for college scholarships and there might be less whining. It’s what the Job corp currently does. Deployments are always tough. They are tough on the service member and tough on the family. Unaccompanied tours (base assignments for either one or two years where you can’t take dependents) are hard too, which is also what you would get for any permanent bases or facilities in Afghanistan because the local population is still dangerous and often hostile.

    Nic (896fdf)

  31. Well, Nic, your grandmother would disapprove of me. My motto is “No ironing. No dress shirts”.

    Why no dress shirts? Because if I don’t wear a dress shirt, then ties are moot.

    norcal (01e272)

  32. Deployments are always tough.

    That’s an understatement given 20 years of them.

    DCSCA (f4c5e5)

  33. That’s an understatement given 20 years of them.

    Try 30-plus–we’ve been deploying people to the Middle East to play policeman since Desert Shield.

    Factory Working Orphan (f916e7)

  34. Trade service for college scholarships is pretty much what exists no – on a voluntary basis, Nic. .

    Mandatory conscription is the issue.

    BTW, Bugs Bunny can’t sell Afghan War Bonds after all; he’s is a racist… 😉

    https://www.youtube.com/watch?v=kiEdFcsAoU4

    “Ain’t I a stinker?!” – Bugs Bunny [Mel Blanc] Warner Bros.

    DCSCA (f4c5e5)

  35. Let’s bring all our troops home, wherever they may be. Who cares if the world goes to hell? We don’t have to live in it.

    Oh……..wait.

    norcal (01e272)

  36. McConnell, Graham and some others came out against Trump’s surrender to the Taliban.

    Dave (1bb933)

  37. Bah, wrong thread.

    Dave (1bb933)

  38. @norcal@31 She lost the battle with her own boys long ago, but that doesn’t mean that she approves, and we all dressed for her house like we were dressing for church. I am also not a big believer in ironing.

    @DCSCA@32 it really depends on the deployment. Deployments into a war-zone, yes tough is very much an understatement. Deployment as support staff at a European or Asian base outside a warzone, tough because you miss your family, but not specifically terrible to do.

    @FWO@33 longer than that. We’ve had people at Incirlik in Turkey since the 50s.

    Nic (896fdf)

  39. @DCSCA@34 I did say it was part of the Job Corps currently 😛

    Nic (896fdf)

  40. Yes, and even before December 7th. I’ve told this story here before, but who couldn’t use a refresher?

    My dad enlisted in 1939, convinced that a war was coming and wanting to be able to have some control over where he was sent. He spent the war in Xian, China, in charge of beer and cigarettes (or so he always said).

    Kevin M (ab1c11)

  41. 🙂 Sounds like a nice gig for your day, Kevin. Smart guy to enlist so early.

    norcal (01e272)


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