When the Soviet Union invaded Afghanistan in 1979, President Jimmy Carter took steps to gear up the nation for armed conflict. He reinstated the requirement, then lapsed, that immature men register for the draft—and called on Congress to update the law to allow everyone to register, regardless of gender. Congress didn't listen the call, and concluding week the Supreme Court appear that information technology would not accept upwards the result either.

Many run into this equally a missed opportunity. Men-only registration reflects the outdated and sexist notion that women are less fit to serve in the armed forces and, on the flip side, that men are less fit to stay home as caregivers in the consequence of an armed conflict. Such stereotypes demean both men and women. Limiting registration to men as well devalues the contributions of women who serve in today's all-volunteer strength. That's why the ACLU filed a petition asking the Supreme Court to declare sex-based registration unconstitutional. (I am a member of the legal team.)

Rather than distance itself from these gender stereotypes, the Selective Service System doubled downwards in a recent public service announcement better suited for the cast of Saturday Night Live than the United States regime. The 30-second advertisement shows a swain transform into a cartoonish One thousand.I. Joe after registering for the draft; his mother, in stupor, drops the dish she was washing.

"The United states of america Constitution prohibits the Federal Government from discriminating on the basis of sex activity absent-minded an 'exceedingly persuasive justification,'" wrote Justice Sonia Sotomayor in response to our petition. "The Military machine Selective Service Act requires men, and only men, yet, to annals for the draft upon turning xviii." Simply the courtroom explained that information technology would not intervene while Congress considers a recent report recommending universal registration. "It remains to be seen," the statement read, "whether Congress volition end gender-based registration."

The court doesn't typically provide its reasons for declining to hear a case, so the short statement sent a powerful message that the justices should consider men-simply registration pregnant. Equally noteworthy was the fact that Justice Brett Kavanaugh chose to join Justices Sotomayor and Stephen Breyer in signing it. The courtroom hasn't decided a ramble instance involving sexual activity bigotry since the composition of the court shifted under President Trump, and some have wondered if the newest members would adhere to the heightened standard of review that has long applied in such cases. Monday'southward statement reassuringly cited longstanding precedent, including several landmark cases litigated by the belatedly Justice Ruth Bader Ginsburg during her years as director of the ACLU Women's Rights Project. As those decisions recognized, gender-based distinctions in constabulary are mostly grounded in archaic stereotypes.

Critics from both the left and the right have argued that true equality requires abolishing registration, not extending information technology evenhandedly. That is precisely what the applied upshot of our lawsuit, if successful, would take been. To exist sure, a Supreme Court decision declaring registration unconstitutional on the grounds that it discriminates based on sexual practice would not accept blocked Congress from adopting a new registration scheme for men and women alike. But neither would it have mandated that Congress exercise and so. Rather, one of the goals of the lawsuit was to prompt Congress to ask whether it is still necessary to register anyone at all. Our suit could also have opened upward new possibilities, such every bit a program of national service, as retired Gen. Stanley McChrystal and others have recommended. Whatever of those results would be an comeback over our current, discriminatory system.

The Supreme Court last confronted gender-based registration in 1981, when it upheld the law because, at the time, women were also excluded from combat roles. Just the core premise for the courtroom's 1981 determination is no longer true today: "The role of women in the military has changed dramatically since then," the courtroom noted on Monday. Most recently, in 2013, the military machine lifted the ban on women in combat in response to ii lawsuits, including one brought past the ACLU.

Despite these changes, skepticism about women's service has hardly lessened in over half a century. "We have been shocked to hear that women in Russia are going into the combat service," intoned Senator Burton K. Wheeler on the Senate floor in 1945. "Nosotros are more civilized, more Christianlike, than some nations that have done such things." In 1980, the Senate committee that considered—and rejected—President Carter's request to expand registration concluded that "drafting women would place unprecedented strains on family life." The report described the possibility that "a young mother" could be called to service while "a young begetter remains home with the family unit" every bit "unwise and unacceptable to a large majority of our people." And meaning opposition remains today. The current ranking Republican member of the Senate Armed Services Committee warned that there would be opposition to the "controversial" thought that women could exist chosen to serve alongside their brothers.

Though Congress has proved stubbornly resistant to modify, a prod from justices beyond the ideological spectrum provides reason to promise that this time will exist different. And, if non, nosotros'll be knocking at the Supreme Courtroom's door again.