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Posted on Jun 15, 2021 Print this Article

Supreme Court Denies Petition to Include Women in Selective Service Draft Registration

CMR Amicus Brief on the Winning Side

On June 7, the U.S. Supreme Court denied a petition for a writ of certiorari that the National Coalition for Men (NCFM) had filed to persuade the Court to declare the current Selective Service System unconstitutional.  Instead, the Supreme Court properly recognized that Congress, not the federal courts, should decide the question of whether young women should be required to register with Selective Service on the same basis as men.

The Center for Military Readiness applauded the decision, which was consistent with an amicus brief that CMR submitted to the Supreme Court on March 12.  Two public policy organizations, six retired general officers, and an expert on physical fitness standards joined CMR in submitting the successful amicus brief.  (See below)

Background and Overview

In February 2019, a federal district court in Texas ruled in favor of the NCFM plaintiffs and held that the male-only registration requirement was unconstitutional. On appeal, the Fifth Circuit reversed the district court.  In the August 2020 opinion, the Court of Appeals held that Rostker v. Goldberg, the 1981 Supreme Court decision that upheld the authority of Congress to require only men to register for the draft, controlled and lower courts must follow it unless and until the Supreme Court overruled it.

The ACLU Foundation, seeking to overrule the landmark Rostker case, filed the petition on behalf of the NCFM and two individual male plaintiffs.  The Supreme Court wisely denied the petition, however, putting the issue squarely in the court of Congress to decide.

As CMR and its fellow amici argued in their brief, 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, not the courts. 

The Biden Administration Department of Justice filed a brief making an argument similar to that presented by CMR: Because Article 1, Section 8 of the U.S. Constitution assigns decision making power on matters involving the military to Congress, the Supreme Court should not get involved.  The Department of Justice brief, however, omitted any discussion of the physiological differences between men and women that are relevant when considering the composition of the draft pool in the middle of a national emergency.

Women in Combat: The “Elephant in the Room”

As argued only in the CMR brief, the fact 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, doesn’t mean that all women should be subject to a future draft. “The physiological differences between men and women have not been repealed and that unassailable fact has serious implications for any future draft. (CMR amicus brief at p. 16, emphasis added).

Now that the Supreme Court has deferred to Congress, reasonable lawmakers must consider the inconvenient facts that proponents of drafting women refuse to discuss: (1) the average man is bigger, faster, stronger, and has more endurance than the average woman; (2) size, speed, strength, and endurance are critical to succes in combat; and (3) gender norming physical requirements in order to find "qualified" women will risk the lives of men and women and hinder our ability to prevail on the battlefield.

From 2012 through 2015, the Marine Corps evaluated these factors and their implication for success in combat. 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 p. 17, emphasis added)

In their petition, Plaintiffs argued that repealing limitations on the assignment of women to combat billets changed the “fundamental premise” of Rostker v. Goldberg -- a landmark precedent in which the Supreme Court deferred to Congress on matters involving the military and Selective Service -- and justified overruling it.  CMR and its fellow amici refuted that claim by exposing Plaintiffs’ misreading of Rostker:

“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 brief at p. 4, emphasis added)

Time for Serious Congressional Oversight

In 2016, Congress established the $45 million, three-year National Commission on Military, National and Public Service. The National Commission completed its work last year, and the Senate Armed Services Committee conducted a hearing on the Commission’s Final Report on March 11. 

The Center for Military Readiness filed a Statement for the Record of that hearing, opposing the National Commission’s key recommendations regarding the purpose and eligibility requirements of Selective Service:

Statement for the Record Submitted by Elaine Donnelly, President, Center for Military Readiness, March 11, 2021

CMR also sent a detailed letter to Sen. James Inhofe, Ranking Member on the Senate Armed Services Committee, taking issue with several misleading comments made by members of the National Commission during the March 11 hearing.

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

Donnelly’s letter objected to the Commission’s recommendation that the purpose of Selective Service be changed to include non-combat requirements (a step toward mandatory national service) and its reference to Project 100,000 – a disastrous Vietnam-era social experiment – to justify registration of women for a possible future draft.

Donnelly also took issue with the notion that co-ed conscription is necessary to increase respect for women in the military, and the idea that such a policy would improve military readiness.

The House Armed Services Committee has not conducted hearings on women in combat and Selective Service since 197942 years ago.  In the Senate, the last Armed Services Committee hearing on the subject occurred in 199130 years ago. 

It is long-past time for members of the House and Senate to take a serious, objective look at what has happened since 2015, six years ago, when Secretary of Defense Ashton Carter disregarded Marine Corps recommendations, making women eligible for combat arms units such as the infantry and Special Operations Forces

There have been many hearings on chronic problems with sexual misconduct but claims that combat assignments would reduce problems of sexual assault have been thoroughly discredited.  In addition, still-unresolved problems with the Army Combat Fitness Test (ACFT) version 3.0, in which female trainees’ failure rates in previous versions ranged between 65% and 84%, clearly indicate that “gender-neutral” standards are not working.

In Close Combat: Where Do Women Stand?

The Supreme Court denied the NCFM petition for certiorari, but Justice Sonia Sotomayor, together with Justices Brett Kavanaugh and Stephen Breyer, wrote a separate statement suggesting that they might grant review on a similar case should Congress fail to consider the issue. Justices Sotomayor, Breyer, and Kavanaugh seem to be impressed by the fact that a few remarkable women have passed high physical standards demanded by the military’s elite special operations units.

It is true that three women earned congratulations by passing the 9-week Army Ranger training in 2015, even though questions were raised about the women’s highly-publicized success.  In his book Stand Down: How Social Justice Warriors are Sabotaging America’s Military, Ranger-trained author James Hasson quoted Army sources who witnessed special considerations for the women, including forgiveness of a major error during a nighttime training exercise.  (pp. 82-87)

This matters because the mistake was serious, and graduation of two women was hailed as “proof” that female soldiers could and should be assigned to infantry squads and battalions that attack the enemy with deliberate offensive action.  These practices betrayed both the women and combat experienced soldiers who knew the truth and saw it being ignored.

More have earned the Ranger tab since then, as hundreds of male officers do each year without being assigned to the Ranger’s active special operations unit, the 75th Ranger Regiment. (Unlike the SEAL training course required to earn the Trident and subsequent assignment to a SEAL team, earning the Ranger Tab is not an automatic entry into the special operations forces.)

According to news reports (which sometimes conflict because officials do not release names of trainees), ten women graduated from the Army Infantry Basic Officer Leader Course (BOLC) in 2016, and one woman passed the Marine Winter Warrior training in 2019.  There have been no reports of women qualifying for Marine Special Operations Forces (MARSOC) Raiders fighting teams.

One female Navy officer passed the two-week SEAL assessment evaluation in preparation for a different career.  CMR has confirmed, however, that to date no woman has attempted, much less completed, either the SEAL training program, which includes the grueling Basic Underwater Demolition/SEAL (BUD/S) course, or the Special Warfare Combatant-Craft Crew (SWCC-SEAL) assessment.

Only two women are known to have passed the Marine Infantry Officer Course (IOC), after modifications were made in scoring systems.

A single female soldier qualified as a Green Beret in 1981 and another in 2020.  Considering that somewhere between 600 and 900 soldiers qualify for the Green Beret each year, the fact that only two women have met those standards in 39 years is not a strong argument for including women in a future draft.

In Iraq, female soldiers and Marines served “in harm’s way” with Female Engagement Teams (FETs) or Cultural Support Teams (CSTs).  These women did what men could not do: work with and gather intelligence from civilian women.  These were dangerous missions in war zones, but they did not fit the definition of direct ground combat missions, which seek out and destroy enemy forces with deliberate offensive action.

The few women who have passed basic infantry officer courses or successfully complete rigorous training programs deserve respect, but they do not make the case for registering large numbers of draft-age women, most of whom would not be able to meet even minimal requirements for combat during a catastrophic national emergency justifying reinstatement of the draft. 

As the Marine Corps study found, size, strength, speed, and endurance are vital in surviving and succeeding on the battlefield. The fact that a few women may pass demanding physical tests does not mean that enough women can pass those tests to justify including all young women in a future draft.  Logic, reason, and common sense should lead Congress to reject any move to include women in the Selective Service registration on the same basis as men.

Co-Ed Conscription Would Slow Mobilization

The CMR amicus brief focused on the primary purpose of a Selective Service draft: to provide a large and ready pool of combat replacements during a time of catastrophic national emergency: “. . . 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)

Congress should not change the Selective Service system unless and until fundamental physiological facts are directly addressed by the policy makers, with military readiness being the highest priority. 

In a news release hailing the Supreme Court’s decision not to decide the issue, CMR President Elaine Donnelly noted, “It is condescending and wrong to suggest that women would not volunteer to serve in a future national emergency, as they always have.” 

Those remarkable women who can meet the demanding physical standards of combat are free to join along with similarly qualified men. But sorting through thousands upon thousands of women who cannot meet those standards in the middle of a national emergency, when the survival of the nation is at stake to find the few who can, would be a monumental disaster.

The Constitution assigns these policy decisions to Congress, not the courts. Members of Congress must fulfill their responsibility by reviewing all the empirical evidence supporting an effective Selective Service registration system that exists to defend the country, not to advance ideological goals that would weaken the military, not strengthen it.

Many Thanks to Amicus Brief Signers and Legal Counsel

Amici joining the brief with the Center for Military Readiness included 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 25th Infantry Division, Lt. Gen. (Ret.) William G. Boykin, former Commander and an original member of the Army’s elite Delta Force.

Also signing on were Maj. Gen. (Ret.) William K. Suter, who served as Assistant Judge Advocate General of the Army and the 19th 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 Counsel of Record was William A. Woodruff, a retired Army Colonel and Law Professor who served in the Army Judge Advocate General’s Corps.

* * * * * *

The Center for Military Readiness is an independent, non-partisan, public policy organization that reports on and analyses military social issues.  Tax-deductible contributions to support CMR’s work can be made through the CMR website by clicking here


Posted on Jun 15, 2021 Print this Article