When American men and women turn 18, they can all vote. Men, but not women, must also register for the draft within 30 days, even though military service in the U.S. has been completely voluntary since 1973. Over 40 years ago, a group of men challenged the male-only draft registration law, calling it “unlawful sex discrimination.” The fight for draft equality has been going on since then, and now the Supreme Court has once again weighed in on the issue by denying cert to the latest challenge. In a brief statement, they deferred to Congress, saying it was up to the legislative branch, not the courts, for a law that required both men and women to register for the draft.

Justice Sonia Sotomayor wrote a short, three-page statement in support of the Court’s denial of the writ of certiorari on June 7. Joined by Justices Steven Breyer and Brett Kavanaugh, she recognized how “the role of women in the military has changed dramatically” since 1991. Beginning that year, there are “no longer any positions in the United States Armed Forces that are closed to women.” Sotomayor’s opinion points out that women are now Navy SEALS, U.S. Army Rangers and Green Berets. Since 2013, they have also been eligible to serve in front-line combat.

Immediately after recognizing the realities of women in 2021, the Justice provided a brief summary of recent developments in the fight for military women’s equality. She pointed out that a Congressionally created Commission on Military, National and Public Service concluded with a recommendation to “eliminate male-only registration.” In addition, she wrote, in March of this year, the Senate Armed Services Committee held a hearing where Chairman Jack Reed (D-RI) expressed his hope that a “gender-neutral registration requirement be incorporated into the next national defense bill.”

Even though the start of the Supreme Court’s opinion seemed to champion gender-neutrality, Sotomayor quickly shifted gears. She wrote that the Court must defer to Congress in this matter. “But at least for now,” Sotomayor said, “the Court’s long-standing deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue.” But, Congress is still “weighing,” not acting.

The Court’s opinion in National Coalition for Men et. al. v Selective Service System et. al. is disappointing to many. The American Civil Liberties Union (ACLU), which filed a petition in support of gender equality, began by citing the Military Selective Service Act, the current law that states “…it shall be the duty of every male (emphasis added) citizen of the United States…to submit to registration…” It then gave a brief summary of 40 years of cases that sought to change this “unlawful sex discrimination.”

The challenges began in 1981 with Rostker v. Goldberg, when the Court was beginning to “invalidate sex-based laws predicated on outmoded notions of men’s and women’s abilities and preferences.”

The case relied heavily on current military restrictions that barred women from combat duty. As a result, the all-male court upheld the law. Their opinion cited such “archaic stereotypes” as “drafting women would place unprecedented strains on family life.”

Things might have changed in 2015 when the Department of Defense announced that “all military roles, units, and schools would officially be open to women with no exceptions,” including combat operations, which were lifted in 2013. Yet, adding women to the draft somehow remained an exception, despite many military admissions that said doing so would promote fairness and equity.

Many studies show that adding women to the draft would “further the goal of military readiness.” The ACLU petition quotes a Department of Defense paper that said U.S. armed forces have “increasingly diverse military needs” and concluded, “t would appear imprudent to exclude approximately 50% of the population—the female half—from availability for the draft in the case of a national emergency.”

The ACLU called this case “the ideal vehicle to revisit” one of the “last sex-based classifications in federal law.” The civil rights group asked the court to reverse the Fifth Circuit’s ruling even though it acknowledged that the “fundamental predicate” for it no longer exists. The lower court deferred as well, saying that Rostker would have to remain controlling, “even when its decisions rest on increasingly wobbly, moth-eaten foundations,” until the Supreme Court revisits it. But the Supreme Court, like the Fifth Circuit, passed the buck, this time back to Congress.

On April 16, President Biden weighed in on the issue, foreshadowing the Supreme Court’s cert denial. The President’s Acting Solicitor General Elizabeth Prelogar filed a legal brief that held a position similar to Sotomayor’s. Quoted in the Military Times, she said that since Congress is considering the requirement that women sign up for the draft when they turn 18, the court should “let the legislative branch decide the question.”

The buck, it seems, has to stop there.