Expanding the Selective Service: Legal Issues Surrounding Women and the Draft

Expanding the Selective Service: Legal Issues Surrounding Women and the Draft

Legal Sidebari

Expanding the Selective Service: Legal Issues
Surrounding Women and the Draft
Updated September 14, 2020
Should American women be required to register for the draft alongside their male counterparts? On
March 25, 2020, the National Commission on Military, National, and Public Service (the Commission)
released a report addressing this and other questions relating to military, national, and public service. The
Commission recommended that women should be required to register with the Selective Service System
and be included in any future draft. While the Commission considered changes to the law, recent court
decisions have taken diverging views on whether the current male-only registration requirement is
constitutional. Most recently, on August 13, 2020, the U.S. Court of Appeals for the Fifth Circuit (Fifth
Circuit) ruled that a nearly forty-year-old Supreme Court case, which held that male-only registration is
constitutional, is still controlling law.
This Sidebar provides a brief legal background of the Selective Service System, including legal
consequences of failing to register. It next describes judicial challenges to the male-only draft and
legislative efforts to require women to register. The Sidebar then discusses the creation and conclusions of
the Commission. Finally, it examines issues for Congress.
Legal Background
The Selective Service System is governed by the Military Selective Service Act (MSSA), which Congress
enacted in 1948 and last substantively amended in 1971. Under the MSSA, the President may issue a
proclamation requiring all male U.S. citizens and most male noncitizen residents of the United States
between the ages of 18 and 26 to register with the Selective Service. The current registration period began
when President Carter issued Presidential Proclamation 4771 in 1980. (For more information about the
Selective Service System, see CRS Report R44452, The Selective Service System and Draft Registration:
Issues for Congress, by Kristy N. Kamarck.)
The main purpose of Selective Service registration is to “rapidly provide[] personnel in a fair and
equitable manner” through a military draft when necessary for national security. Activation of the draft
does not require a state of war. Instead, the President can activate the draft when “required to provide and
maintain the strength of the Armed Forces.”
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A man who must register with the Selective Service and knowingly fails, neglects, or refuses to do so may
be convicted of a felony punishable by up to five years in prison, a fine up to $250,000, or both. Beyond
these criminal penalties, a man required to register who knowingly fails to do so is ineligible for executive
branch employment; cannot receive federal student aid, including grants and loans; and may not
participate in federal job training programs. Failure to register may also affect a noncitizen resident’s
ability to become a U.S. citizen. In addition, many states have laws making state employment or
education benefits contingent on Selective Service registration.
An individual who fails to register may avoid penalties in two ways. First, there is a five-year statute of
limitations on prosecution for failing to register. Second, a man who fails to register “may not be denied a
right, privilege, or benefit under Federal law” if (1) he is no longer required to register and (2) he can
show that his failure to register was not “knowing and willful.”
Legal History of Women and the Draft
Since the most recent amendments to the MSSA in 1971, Congress, the President, and the courts have
each considered whether to require women to register with the Selective Service. In 1979, Congress asked
President Carter “whether women should be subject to registration under [the MSSA] and to induction for
training and service in the Armed Forces.” President Carter responded that there was “no distinction
possible, on the basis of ability or performance, that would allow [him] to exclude women from an
obligation to register.” Although Congress approved supplemental appropriations for the Selective Service
System in June 1980, the Senate rejected an amendment to that measure that would have required women
to register with the Selective Service. As a result, when President Carter reinstated Selective Service
registration in July 1980, it applied to men only.
Judicial Challenges
The first major court decision addressing male-only registration came a year after President Carter
reinstated Selective Service registration. In Rostker v. Goldberg, 453 U.S. 57 (1981), the Supreme Court
considered whether male-only registration violated the Constitution’s Due Process Clause of the Fifth
Amendment. (Among other things, the Fifth Amendment guarantees equal protection under federal laws.)
The Supreme Court ruled that male-only registration was constitutional, reasoning that “[m]en and
women, because of the combat restrictions on women, are simply not similarly situated for purposes of a
draft or registration for a draft.”
The next challenge came more than twenty years later in Schwartz v. Brodsky, 265 F. Supp. 2d 130 (D.
Mass. 2003). In that case, a group of Massachusetts students, both male and female, challenged the male-
only registration requirement as violating their equal protection rights. The court rejected the students’
arguments. It explained that Rostker relied on “two key factual underpinnings”—(1) that the purpose of
Selective Service registration was to facilitate a draft of combat troops and (2) that women were ineligible
to serve in combat. Because neither of these facts had changed since the Rostker decision, the court
dismissed the students’ claims.
In 2009, a judge reached a similar result in Elgin v. United States, 594 F. Supp. 2d 133 (D. Mass. 2009).
The court rejected the plaintiffs’ equal protection challenge to the MSSA, explaining that “there has not
been a sufficient change in the material circumstances underpinning the Court’s equal protection analysis
in Rostker to justify relitigation of the issue at this time in this case.” The U.S. Court of Appeals for the
First Circuit (First Circuit) later vacated the district court’s decision for reasons unrelated to the MSSA’s
constitutionality, holding that the lower court lacked jurisdiction over the case. The Supreme Court upheld
the First Circuit’s decision.

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But in 2019, two district courts revisited the issue and concluded that Rostker may no longer be good law.
First, in Kyle-Labell v. Selective Service System, 364 F. Supp. 3d 394 (D.N.J. 2019), a group of women
challenged the male-only registration requirement. The government asked the court to dismiss the case,
relying on Rostker. The court declined to dismiss the case, ruling that because women can now serve in
combat roles, the facts of the current case were different than those underlying Rostker. The case remains
pending before the U.S. District Court for the District of New Jersey.
Second, in National Coalition for Men v. Selective Service System, 355 F. Supp. 3d 568 (S.D. Tex. 2019),
the U.S. District Court for the Southern District of Texas considered a group of men’s challenge to the
male-only registration requirement. As in Kyle-Labell, the court explained that Rostker did not control the
outcome of the case, because “[t]he dispositive fact in Rostker—that women were ineligible for combat—
can no longer justify the [Selective Service Act]’s gender-based discrimination, because women can serve
in combat.” After rejecting the government’s arguments that requiring women to register would impose
an undue administrative burden and that conscription of women could lead to “‘potential tradeoffs’ for the
military,” the court held that the all-male registration requirement violated the Constitution and ruled for
the plaintiffs.
The government appealed the decision, and on August 13, 2020, the Fifth Circuit reversed the district
court’s ruling. The Fifth Circuit acknowledged that the facts underpinning Rostker had changed but held
that it could not “‘ignore a decision from the Supreme Court unless directed to do so by the Court itself.’”
The court concluded that the men’s claims were foreclosed by Rostker and dismissed their case. The
National Coalition for Men can seek review by the full Fifth Circuit, sitting en banc, or by the Supreme
Court.
Legislative Proposals and Congressional Actions
Along with these judicial challenges to all-male registration, there have been several legislative attempts
since 1980 to require women to register with the Selective Service. Most recently, both the 113th and 114th
Congresses considered stand-alone bills that would require women to register with the Selective Service,
though none of the bills advanced out of committee.
More notably, Section 591 of the Senate-passed version of the National Defense Authorization Act for
Fiscal Year 2017 (FY17 NDAA) would have required women to register with the Selective Service. In its
report accompanying the bill, the Senate Armed Services Committee recommended that Congress amend
the MSSA to require women to register. The Committee explained that “the ban of females serving in
ground combat units has been lifted by the Department of Defense, and as such, there is no further
justification to apply the selective service act to males only.” Although the final version of the FY17
NDAA did not require women to register with the Selective Service, it created a commission—the
National Commission on Military, National, and Public Service—to consider that and other issues.
The Commission and Its Report
When Congress created the Commission in the FY17 NDAA, it tasked the Commission with reviewing
the Selective Service registration process and considering ways to increase military, public, and national
service. To that end, Congress required the Commission to investigate and report on several questions,
including whether the Selective Service System “should include mandatory registration by all citizens and
residents, regardless of sex.” Congress required the Commission to issue its final report no later than
thirty months after the Commission’s establishment.
In its final report, issued March 25, 2020, the Commission recommended that both men and women
should be required to register with the Selective Service. It noted that requiring women to register
“evoked a range of passionate and heartfelt views,” with “a slight majority” of the public “support[ing]

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women’s registration.” It explained, however, that expanding registration would “allow[] the President to
leverage the full range of talent and skills available during a national mobilization.” The Commission also
found that “the current disparate treatment of women unacceptably excludes women from a fundamental
civic obligation and reinforces gender stereotypes about the role of women, undermining national
security.” The Commission’s report included a legislative proposal that would, among other things,
amend the MSSA to require women to register.
Congressional Considerations
Whether to require women to register for the Selective Service is a debate that has spanned four decades.
As the Commission noted, “public opinion data on whether to expand registration to women is mixed,
with no overwhelmingly dominant public voice in this debate.” But the Commission ultimately
recommended that Congress amend the MSSA to require women to register. And courts have recently
disagreed as to whether the male-only registration requirement in the current MSSA is unconstitutional.
Congress may seek to respond to the Commission’s recommendation and the ongoing litigation. If
Congress chooses to act, it could do so in several ways. For example:
 Congress could follow the Commission’s recommendation and amend the MSSA to
require women to register for the Selective Service. This option would likely moot the
pending court cases and call into question the continued validity of Rostker.
 Congress could respond to the pending litigation by amending the MSSA to provide a
new justification for why women should not be required to register. Courts would have to
consider whether the new rationale warrants treating men and women differently, and the
courts could still find the male-only registration requirement unconstitutional.
 Congress could repeal the MSSA. This option would also likely moot the pending court
cases. It might, however, arguably raise national security and military readiness concerns.
Congress could also choose not to act. In that case, the pending cases would move forward, and the fate of
the current MSSA would rest with the courts. Given the precedential value of Rostker and the conflict
between Kyle-Labell and National Coalition for Men, it would likely take a Supreme Court decision to
resolve the debate judicially.

Author Information

Jonathan M. Gaffney

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.

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