U.S. Supreme Court

Supreme Court won't hear challenge to male-only draft; Kavanaugh joins 2 liberal justices in statement on denial

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The U.S. Supreme Court on Monday turned down a constitutional challenge to the male-only draft that was argued before a federal appeals court by a men’s rights lawyer who was shot and killed outside his home in July 2020.

Justice Sonia Sotomayor issued a statement regarding the cert denial, joined by Justices Stephen G. Breyer and Brett M. Kavanaugh. The statement noted that Congress is considering the issue.

“At least for now,” the statement said, “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.”

The 5th U.S. Circuit Court of Appeals at New Orleans had upheld the all-male draft in August 2020. The appeals court said it was bound to follow a 1981 Supreme Court decision finding no Fifth Amendment violation.

The 5th Circuit case was argued by Marc Angelucci of Crestline, California. Authorities had said evidence linked Angelucci’s killing to Roy Den Hollander, a men’s rights lawyer who apparently shot himself after killing the son of U.S. District Judge Esther Salas of New Jersey and wounding her lawyer husband. Hollander may have had a grudge because he wasn’t involved in the lawsuit brought by Angelucci and the National Coalition for Men.

The Supreme Court case that upheld the all-male draft was Rostker v. Goldberg, decided in 1981. The high court had reasoned that there was no equal protection violation because women were excluded from combat roles and would not be needed in the event of the draft.

Sotomayor’s statement noted that women’s roles in the military have “changed dramatically since then. Beginning in 1991, thousands of women have served with distinction in a wide range of combat roles, from operating military aircraft and naval vessels to participating in boots-on-the-ground infantry missions.”

A commission created by Congress in 2016 to study the issue issued a final report last year. The report found that “male-only registration sends a message to women not only that they are not vital to the defense of the country but also that they are not expected to participate in defending it.”

The Senate Armed Services Committee had a hearing on the report a few months ago, and the committee chairman expressed hope that a gender-neutral draft will be part of the next national defense bill. It remains to be seen whether Congress will act, Sotomayor said, but she agrees with the decision to deny cert at this time.

The American Civil Liberties Union, the ACLU of Texas and Hogan Lovells had filed the cert petition on behalf of the National Coalition for Men.

Hat tip to SCOTUSblog. CNN and CBS News also have coverage.

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