“Congress, Not the Courts, Should Decide on Selective Service Registration of Women”

The Center for Military Readiness, along with two additional public policy organizations, six retired  general officers, and an expert on physical fitness standards, have filed an amicus brief with the Supreme Court of the United States, asking the SCOTUS to deny a petition seeking to overrule a 1981 case that upheld Congress’ decision to limit draft registration to men.

CMR also submitted to the Senate Armed Services Committee (SASC) a detailed Statement for the Record in opposition to registration of women for the draft and other recommendations of the National Commission on Military, National, and Public Service.

By filing detailed statements before the Supreme Court and the Senate Committee, CMR has taken the lead in advocating for sound policies that defend sound policy in the All-Volunteer Force, which should not include registering young women with Selective Service. 

 Background

CMR’s “friend of the court” brief, submitted on Friday, March 12, responded to a petition for a writ of certiorari, which the National Coalition for Men (NCFM) and two individual plaintiffs filed after the government successfully appealed a lower court decision finding that male-only Selective Service registration was unconstitutional.   

A federal district court in Texas ruled in favor of the NCFM plaintiffs in February 2019, but the Court of Appeals for the Fifth Circuit overturned that ruling in August 2020. 

In the opinion of the Fifth Circuit Court, the 1981 Rostker v. Goldberg landmark Supreme Court decision, which upheld the right of Congress to include only men in Selective Service registration requirements, still prevailed.   

CMR and the other amici on the brief have asked the Supreme Court to deny the NCFM petition for certiorari.  Denying the petition would allow the Fifth Circuit Court decision to stand, leave Rostker as the controlling precedent, and keep the authority to make decisions about whether to have a draft and who must register with Congress, where it belongs under Article 1, Section 8 of the U.S. Constitution.

Amici joining the brief with the Center for Military Readiness include Eagle Forum and Concerned Women for America,  two respected and effective national organizations that advocate for women and families, former Vice Chief of Naval Operations Adm. (Ret.) Jerome Johnson, Lt. Gen. (Ret.) Benjamin R. Mixon, who served as Commander of the U.S. Army Command in the Pacific and the 25^th Infantry Division, Lt. Gen. (Ret.) William G. Boykin, former Commander and an original member of the Army’s elite Delta Force, Maj. Gen. (Ret.) William K. Suter, who served as Assistant Judge Advocate General of the Army and the 19^th Clerk of the Supreme Court, Rear Adm. (Ret.) Hugh P. Scott, a physician and expert in medical physical standards who served as Director, Medical Plans and Policy, Office of the Chief of Naval Operations, and Paul O. Davis, Ph.D., an expert in physical fitness and employment standards in the public safety sector.

The CMR amicus brief, announced with a news release, argues that the U.S. Constitution assigns decision making power on matters involving the military to Congress, not the courts.  The Supreme Court, therefore, should not intervene at this time.

Physical Differences Between Men and Women Have Not Been Repealed

The CMR brief also counters the Petitioners’ claim that repealing limitations on the assignment of women to combat billets changed the “fundamental premise” of Rostker v. Goldberg and warrants overruling it: 

“Petitioners misperceive Rostker’s fundamental premise, ignore the role, authority, and responsibility of Congress in raising and supporting armies, fail to acknowledge the physiological differences between males and females that bear upon the question of whether men and women are similarly situated with regard to filling the combat replacement stream during a national mobilization, and seek to short-circuit the ongoing legislative process, which is considering whether to maintain the current selective service system, abandon it altogether, or create a different paradigm”  (CMR amicus brief at p. 4, emphasis added)

The amicus brief recognizes that some women have proved themselves capable of meeting the high standards that combat demands and previous policies regarding women in combat billets have been repealed, but “the physiological differences between man and women have not been repealed.”  (CMR brief at p. 16, emphasis added).

The amicus brief cites several key points of information resulting from a thorough three-year study that the Marine Corps conducted from 2012 to 2015.  During nine months of field exercises simulating combat requirements, professionally monitored by the University of Pittsburgh, the Marine Corps study objectively compared the performance of all-male and mixed-gender units.

A September 2015 Summary of voluminous research findings (included as Appendix A in the amicus brief) reported, among other things: “All-male squads, teams and crews demonstrated higher performance levels on 69% of tasks evaluated (93 of 134) as compared to gender-integrated squads, teams, and crews.” (CMR brief at pp. 17-21, emphasis added)

The Purpose of Selective Service Registration Has Not Changed

The CMR brief maintains that the purpose of a military draft, which could be reinstated during a time of catastrophic national emergency, would be to provide a ready pool of combat replacements.  Accordingly, “. . . drafting large numbers of women who cannot meet [combat] standards will hinder the process of providing timely combat replacements.” (CMR brief at p. 15, emphasis added)

Senate Conducts Hearing on National Commission Selective Service Recommendations

As stated in the CMR amicus brief, questions about Selective Service are currently before Congress.  The National Commission on Military, National and Public Service completed its work last year, and the Senate Armed Services Committee conducted a hearing on the Commission’s Final Report on March 11.

As CMR observed last year, the Commission’s recommendations were disappointing, misguided, and less than thorough on issues related to Selective Service.  This is the statement CMR filed with the Senate Committee on March 11, which will be made part of the hearing record:

Statement for the Record Submitted by Elaine Donnelly, President, Center for Military Readiness

CMR also took issue with several comments that the Chairman and Vice-Chairman of the National Commission made in their statement and testimony, which misrepresented the purpose and eligibility requirements of Selective Service:

Letter to Ranking Member James Inhofe from Elaine Donnelly, Pres., CMR

 Excerpts of CMR Letter to Senator Inhofe:

“On page 7, the National Commission claims that Selective Service exists to “meet a wide range of Department of Defense personnel needs in the event of a national emergency, which includes non-combat and combat positions.”  The statement is footnoted to a reference regarding circumstances during World War II, before establishment of the All-Volunteer Force. 

“The purpose of Selective Service has not changed – nor should it change, as the National Commission recommended.  The landmark Supreme Court Rostker v. Goldberg decision recognized that in requiring only men to register for the draft, Congress grounded its policy decision on the need for a rapid stream of qualified combat replacements.  “Congress determined that any future draft, which would be facilitated by the registration scheme, would be characterized by a need for combat troops.”  (453 U.S. 57, 75) 

[In response to the commission’s claim that in times of unmet personnel needs, the Defense Department has “regularly resorted to reducing quality standards” footnoting several articles about Project 100,000, a Vietnam-era program ordered by then Secretary of Defense Robert S. McNamara.]

“As explained in Matt Davis’s Project 100,000: The Vietnam War’s Cruel Experiment on American Soldiers and Hamilton Gregory Spring’s article McNamara’s Boys, Project 100,000 was one of the worst social experiments ever conducted in our military. 

“Defense Secretary McNamara recruited and sent to Vietnam about 300,000 men who failed to meet minimum criteria for military service, both physically and mentally.  Most had not passed the Armed Forces Qualification Test (AFQT) and were classified Category IV. 

“President Lyndon Johnson’s “War on Poverty” was starting up, and military “opportunities” were offered to Cat IV personnel as a way out of poverty.  Good intentions did not matter.  These recruits, who were called “New Standards Men,” were killed in disproportionate numbers.  Those who survived the war fared worse in their lives than civilian peers. 

“ . . . There is an obvious irony here that the National Commission has failed to recognize: Without question, American women are as smart, patriotic, and as courageous as men.  However, policies that would draft unwilling women to fight in physically demanding combat arms units would repeat the same type of social experiment that cost the lives of thousands of “New Standards Men” in Vietnam.

“ . . . Whether intended or not, the commission itself has failed to recognize women’s contributions in times of national emergency by implying that it is necessary to force women to register . . . or they won’t do their part.  The insinuation is belied by the fact that millions of American women repeatedly have demonstrated their talents, skills, and abilities by volunteering to serve in times of national emergency.   There is no reason to believe patriotic women would not do so again.

[The commission claimed, “Of the 17 to 24 year old cohort, equal proportions of women and men meet initial military accession standards – an estimated 29.3 percent of women versus 29.0 percent of men.”] 

“. . . This highly misleading assertion . . .  seems to suggest that the 29% of healthy women without disqualifying health problems or criminal records are functionally interchangeable with the 29% of men who do not have disqualifying health problems or criminal records. 

“But those eligibility factors should not be confused with physical capabilities. Voluminous research that the National Commission barely mentioned contradicts the misleading claim that calling up equal numbers of women would somehow 'maintain higher military standards.'

“ . . . The CMR Statement for the Record cited the substantial body of evidence that supports this assertion, and also mentioned the Army’s difficulties in trying to finesse physical differences with the new “gender-neutral” Army Combat Fitness Test (ACFT).  Since then, the Army has announced the ACFT 3.0, which essentially gives up on gender-neutral standards.”

Conclusion

The bottom line is that the Constitution assigns policy decisions affecting Selective Service to Congress, not the courts. The American people should directly contact and influence their elected representatives as they consider who, when, if, and/or how to conscript civilians to become soldiers. 

Federal courts should not preclude those options by usurping the constitutional authority of Congress to make policy for our military.

* * * * * *

The Center for Military Readiness is an independent, non-partisan, 501(c)(3) public policy organization that reports on and analyses military social issues.  More information is available on the organization’s website, www.cmrlink.org.  Tax-deductible contributions to support CMR’s work can be made by clicking on our secure contribution page, linked here.