Well, that worked. It wasn’t easy and it required a level of intellectual legerdemain that must have been challenging to bring off, but bring it off they did. Who says the branches of government can’t work together?
I refer to the latest failure to require women to register with the Selective Service System, make themselves available for military conscription and the equal opportunity to be slaughtered and maimed in war.
Last year, I reported on the craven decision by the U.S. Supreme Court to deny a writ of certiorari to the plaintiffs in the case of National Coalition for Men vs. Selective Service System. In it, the NCM challenged the constitutionality of the Military Selective Service Act on Due Process grounds. The plaintiffs prevailed at the trial court level, but were reversed by the Court of Appeals and so applied for a writ of certiorari to the Supreme Court, which was denied.
That was extremely strange. After all, the MSSA is apparently the last law on the federal books that explicitly discriminates on the basis of sex. Back in 1981, the Court, in the case of Rostker vs. Goldberg, had ruled the MSSA to be constitutionally permissible. But, since Rostker was decided, much had changed that struck straight at the heart of its ruling. The Rostker Court “reasoned” that the purpose of the MSSA was to provide a ready supply of combat troops in case of war. Congress had decided that only men were qualified to be those troops and, since the Court gives great deference to Congress in matters of national defense, a law that was discriminatory on its face could stand. (Read my last piece for an idea of how shoddy that reasoning was.)
But in the ensuing 40 years, women had begun serving in all branches of the military and done all the jobs available therein, facts admitted by the Court in its memorandum denying cert. That status quo was explicitly endorsed in 2013 by Secretary of Defense Leon Panetta when he issued an order permitting women to serve in combat in all branches of the military.
In short, “facts on the ground” had knocked the props out from under the Rostker ruling prompting the plaintiffs to file suit seeking gender-equal treatment. So, last year, NCM vs. SSS presented a matter of national concern and importance, but, instead of doing its job and ruling on the constitutionality of the law, the Supreme Court ducked and ran. In a memorandum remarkable for its illogic, three justices explained that, while the case certainly looked like one that should be decided, the Court wouldn’t do so because Congress was then considering whether to amend the MSSA to require women to register.
That made no sense. First, a statute is either constitutional or it’s not. Second, since Marbury vs. Madison in 1803, it has been the job of the Supreme Court to make that call. Third, the MSSA looks on its face, and according to Rostker’s reasoning, to be unconstitutional. Fourth, what Congress may or may not do in the future is irrelevant to whether the MSSA is or isn’t constitutional today. Finally, had the Court ruled, it would have provided Congress valuable guidance about how or whether to amend the law. In short, it dodged an issue on which it didn’t want to rule.
Act Two of the drama naturally saw Congress, three months later, refusing to amend the MSSA and leaving in place the last vestige of overt sex discrimination in federal law. It did so despite the clear recommendation of the National Commission on Military, National and Public Service it had established in 2017. In 2020, the Commission found that,
[T]he time is right to extend Selective Service System registration to include men and women, between the ages of 18 and 26. This is a necessary and fair step, making it possible to draw on the talent of a unified Nation in a time of national emergency.
Congress’ refusal also contradicted the plain import of the statute itself that has read, since its original passage in 1942,
The Congress further declares that in a free society the obligations and privileges of serving in the armed forces and the reserve components thereof should be shared generally, in accordance with a system of selection which is fair and just, and which is consistent with the maintenance of an effective national economy.
“Shared generally?” “Fair and just?” How does imposing the obligation of military conscription solely on one sex mesh with that clearly articulated national policy?
In short, the National Coalition for Men tossed the Court a hot potato that it in turn tossed to Congress that promptly chucked it into the trash hoping no one would see. Now there’s no lawsuit challenging the MSSA and no chance that Congress might set matters aright.
See what I mean? When it comes to preventing gender equality that could benefit men, the two branches of government acted like a well-oiled machine. Now it’ll be at least another three years before someone will be able to file a lawsuit, drag it laboriously and expensively through the trial and appellate courts in the forlorn hope that the Supreme Court won’t once again invent some justification for leaving in place a frankly discriminatory law.
And let’s be clear. The MSSA isn’t some abstract concept that affects no one unless there’s a war requiring military conscription. Failure to register is a federal felony punishable by up to five years in prison and a fine of $250,000. Such a felony on one’s record means the loss of voting rights in 44 states and the loss of countless occupational and professional opportunities for life. All that, plus the possibility of conscription and death or maiming in war remain targeted only at men.
That seems to be just the way the Court and Congress like it.
