Hogan Lovells joins ACLU in filing Supreme Court petition seeking to end discriminatory sex-based registration for the draft

Hogan Lovells joins ACLU in filing Supreme Court petition seeking to end discriminatory sex-based registration for the draft

Press releases | 08 January 2021

Washington, D.C., 8 January 2021 - Global law firm Hogan Lovells, The American Civil Liberties Union, and the ACLU of Texas filed a petition for certiorari today urging the U.S. Supreme Court to declare the Military Selective Service Act unconstitutional. 

The Military Selective Service Act allows the president to require young people to register for the draft — but only if they are men, and these men may face severe penalties if they fail to register. Putting an end to the men-only registration requirement would undo one of the last examples of overt sex discrimination in federal law. 

“Like many laws that appear to benefit women, men-only registration harms women, too,” said Ria Tabacco Mar, director of the ACLU Women’s Rights Project. “The Military Selective Service Act is based on outdated and sexist notions of women’s and men’s abilities to serve in the military, regardless of individual ability. Limiting registration to men treats women as unfit for this obligation of citizenship and reflects the outmoded belief that men aren’t qualified to be caregivers in the event of a draft. Such sex stereotypes have no place in our federal law.”

The petition is not asking the Supreme Court to require women to register for the Selective Service — it is asking the court to declare that the men-only draft registration system discriminates on the basis of sex. Ending sex-based registration would be a significant advancement in equal protection law for men, women, and LGBTQ people.

“The road to full equality for women and the LGBTQ community remains long, but we cannot allow one of the last remaining vestiges of gender discrimination written into federal law to continue,” said Andre Segura, legal director for the ACLU of Texas, in a press release. “In Texas and many other states, government entities, like school districts, still rely on outdated notions of gender norms as a cover to discriminate. We can’t allow this to continue in any forum, even the military.”

The petition for certiorari was filed on behalf of the National Coalition For Men (NCFM) and two individual young men. NCFM former vice president and attorney Marc Angelucci initially brought this case in the lower courts, where the district court agreed that the Military Selective Service Act is unconstitutional sex discrimination. However, the Fifth Circuit reversed the ruling based on the Supreme Court’s 1981 decision in Rostker v. Goldberg, which upheld the men-only registration on the ground that women were prohibited from serving in combat roles. The military has since lifted the combat ban. The petition calls on the Supreme Court to overrule Rostker in light of those changed circumstances.

“Today, women drive tanks and lead infantry soldiers into combat; they have graduated from elite military training programs and given their lives in combat in service to this country,” said Cate Stetson, co-director of the appellate practice group at Hogan Lovells LLP. “Just as there is no reason to exclude women from these crucial military roles, there is no constitutional basis to exclude women from the registration requirement. This case presents an opportunity for the Supreme Court to overrule Rostker and uphold the Constitution’s guarantee of equal protection under law.

In addition to Stetson, the Hogan Lovells team includes associate Danielle Desaulniers Stempel, senior associate Katie Wellington, associate Erin Chapman, and appellate specialist Heather Briggs.