The Supreme Court on Monday announced it would not decide if it is unconstitutional to exclude women from a military draft, with three justices writing in a statement that the issue was better left decided by Congress.

Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Bret Kavanaugh, wrote that although the Fifth Amendment prohibits the federal government from discriminating on the basis of sex absent an “exceedingly persuasive justification,” and that the Military Selective Service Act requires only men to register, the Supreme Court would defer to Congress “for now.”

They wrote, “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.”

Sotomayor noted that it last upheld the draft as is in 1981, based on the women being excluded from combat roles, and would not be needed in the event of a draft. However, they said the role of women in the military has “changed dramatically since then,” noting that since 1991, “thousands of women have served with distinction in a wide range of combat roles.”

They added, “Women have passed the military’s demanding tests to become U. S. Army Rangers, Navy SEALs, and Green Berets. As of 2015, there are no longer any positions in the United States Armed Forces closed to women.”

The justices noted that Congress has tried to tackle the issue of whether women should be eligible for the draft in a commission that began in 2016. The Commission issued its final report in March 2020, in which it recommended including women in the draft.

They also noted that the Senate Armed Services Committee held a hearing on the commission’s report, where Chairman Jack Reed (D-RI)  expressed hope that changes to allow women to be eligible would be included in the next National Defense Authorization Act.

Civil liberties groups have pushed for the draft to include women.

Ria Tabacco Mar, the director of the American Civil Liberties Union (ACLU)’s Women’s Rights Project, argues that requiring men only to register for the selective service puts a burden on men that is not imposed on women, and sends the wrong message to women.

“Requiring only men to register for the draft reflects the outdated and sexist notion that women are less fit to serve in the military and that men are less able to stay home as caregivers in the event of an armed conflict. Such stereotypes demean both men and women,” Tabacco Mar said in a statement.

“We’re disappointed the Supreme Court allowed one of the last examples of overt sex discrimination in federal law to stand. We urge Congress to update the law either by requiring everyone to register for the draft, regardless of their gender, or by not requiring anyone to register,” she said.

Andre Segura, legal director for the ACLU of Texas, added:

The road to full equality remains long, but we cannot allow one of the last remaining vestiges of gender discrimination written into federal law to continue. In Texas and many other states, government entities, like school districts, still rely on outdated notions of gender to discriminate against LGBTQ people and anyone who doesn’t fit the stereotypical notion of what a man or a woman should be like. We can’t allow this to continue in any forum, including the military.

Petitioners in the case included the National Coalition For Men, the National Organization for Women Foundation, a group of retired senior military officers and two individual men.

The Obama administration in 2013 lifted the ban on women serving in combat, with all remaining restrictions on women serving in combat roles lifted in 2015.

Two women first graduated from the U.S. Army’s Ranger School in 2015, a woman first graduated as a Green Beret in 2020. It is not clear whether a woman has officially become a Navy SEAL, however. In 2019, a woman reportedly completed screening to become a Navy SEAL officer but did not pursue a Navy SEAL contract.

The Biden administration, however, urged justices not to take the case and let Congress tackle the issue.

The case is National Coalition For Men v. Selective Service System, No. 20-928 in the Supreme Court of the United States.

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