With the combat restriction for women in the U.S. Armed Forces now lifted, discussion of draft registration is back in the news, the courts, and the halls of Congress. But the problems with Selective Service System (SSS) registration go much deeper than gender equality. There is little political interest in bringing back the draft. Yet draft registration remains a burden upon our nation’s young men -- and now, potentially our young women, as well.
The extrajudicial penalties imposed upon those who choose not to or fail to register make life more difficult for many who already are marginalized, and they particularly target conscientious objectors who believe that registering with Selective Service is a form of participating in war. There is no opportunity to register as a conscientious objector. Legal protection for conscientious objectors was provided in the constitutions of several of the original colonies and was written into early drafts of what became the First and Second Amendments to the Bill of Rights of the U.S. Constitution (Lillian Schlissel, Conscience in America). Instead of honoring and upholding these freedoms and protections, modern lawmakers have subjected non-registrants to laws that deny education, employment and other fundamental opportunities. These laws amount to an unacceptable burden on those individuals who cannot, in good conscience, register, and in fact serve to punish and marginalize those who are living their lives true to the very essence of our democracy.
With the end of the Vietnam War in 1975, draft registration ended as well. In 1980 President Carter reinstated registration to send a message to the Soviet Union, which had just invaded Afghanistan, that the U.S. could be ready for war at any time. This remains the law of the land today: virtually all males residing in the U.S. and all male citizens between the ages of 18 and 26 are required to be registered with Selective Service.
Penalties for failure to register are potentially quite severe: it is a federal felony carrying a penalty of up to five years in prison and a fine of up to $250,000. Since 1980 millions of young men have violated the law (Selective Service System Annual Report to Congress, 1981-2011), yet a grand total of only 20 people have been prosecuted for failure to register. (The last indictment was on January 23, 1986.) Almost all of those prosecuted were conscientious objectors who publicly asserted their non-registration as a religious, conscientious or political statement (http://hasbrouck.org/draft/prosecutions.html).
Initially, the government planned to prosecute a handful of public resisters and scare everyone else into complying. The plan backfired: conscientious objectors facing prosecution were on the evening news talking about their values, asserting a higher moral law. Non-compliance with registration actually increased.
In response, beginning in 1982, the federal government enacted punitive policies designed to coerce people to register. These laws, commonly called “Solomon” laws after the member of Congress who first introduced them, mandated non-registrants be denied the following:
• Federal financial aid to college students
• Federal job training
• Employment with federal executive agencies
• U.S. Citizenship to immigrants
Selective Service has stated consistently that their goal is to increase registration rates, not prosecute non-registrants. They happily accept late registrations until one turns 26, after which time it is no longer possible to register. Because there is a five-year statute of limitations for violations of the Selective Service law, once a non-registrant turns 31 he (we use the pronoun “he” because the law only affects males at this time) can no longer be prosecuted, yet the denial of federal financial aid, job training, and employment extends throughout his life.
Selective Service has testified before Congress that there is nothing to gain by denying these benefits to those who are too old to register (Richard Flahavan, Selective Service System Associate Director, Public and Intergovernmental Affairs). Yet, rather than work to eliminate these extrajudicial penalties for non-registrants, Selective Service encourages states to adopt additional penalties for those who do not register. According to the SSS Annual Report to Congress, more than two-thirds of the men registered in FY 2015 were coerced by measures such as driver’s license restrictions or the threatened loss of access to financial aid (Selective Service System Annual Report to Congress, FY 2015).
To date, 44 states, the District of Columbia, and several territories have enacted legislation that encourages or coerces Selective Service registration. These laws take myriad forms, including restricting employment with state governments, refusing state financial aid, denying enrollment in state educational institutions, requiring residents to pay out-of-state tuition, or a combination of these penalties.
Laws linking registration to a driver’s license, learner’s permit, or photo ID vary by state, from requiring registration in order to receive an ID or license (the position taken by most states) to simply providing the opportunity for one to register. Only five states -- Nebraska, Oregon, Pennsylvania, Vermont, and Wyoming -- have never passed legislation regarding Selective Service registration. (Maryland passed a driver’s license law, but has not yet enacted it.)
The government has made no prosecutions for Selective Service violations since 1986; still hundreds of thousands face life-long penalties (Selective Service System Annual Report to Congress, FY 2015). This practice of penalization without prosecution subverts the system of law established by our Constitution. Furthermore, penalizing people in ways that are unrelated to their alleged offense runs counter to our fundamental notion of justice. If there is political will to enforce a law, violators should be prosecuted and have the right to be judged by a jury of their peers. If there is no political will to enforce a law, the law should be rescinded.
However, rather than rescind this unpopular and burdensome law, recent political and media attention has been focused on extending it to women. On February 2, 2016, top military officials testified before the Senate Armed Services Committee in support of extending the registration requirement to women. Two days later, Representatives Duncan Hunter (R-CA) and Ryan Zinke (R-MT) introduced the Draft America’s Daughters Act, aiming to extend the registration requirement to women. It also would subject women, and disproportionately women of conscience, to potential criminal prosecution, as well as life-long extrajudicial punishment for their act of conscience.
In 1981, single-gender Selective Service registration was challenged as sex discrimination. The Supreme Court ruled in the Rostker versus Goldberg case that a male-only Selective Service registration was legal, stating, “[S]ince women are excluded from combat service,” they are “not similarly situated for purposes of a draft or registration for a draft,” thus affirming Congress’ authority to consider “military need” over “equity.”
But now, no longer barred from combat, women are recognized as “similarly situated.” The reasoning the Court used no longer exists. Several court cases in recent years have challenged the male-only draft on constitutional “equal protection” grounds. One of those cases currently awaits consideration before the 9th Circuit Federal Court of Appeals. But adding women to the population punished by the legal and constitutional oversteps of the Selective Service System solves nothing.
With current federal and state Selective Service laws in place, if a man wants to go back to school later in life or seeks employment with federal or state government agencies, he may well find those opportunities blocked because he did not register. Without a photo ID or driver’s license, the basic human right to travel freely is undermined. Furthermore, if so-called Voter ID requirements continue to spread, these laws may restrict the right of non-registrants to a fundamental means of expression: the vote.
Few would argue that the legislators behind these punitive laws are knowingly and purposefully looking to harm or disenfranchise certain groups, but that is no less the effect of their actions. The time is ripe to challenge these laws -- not add women of conscience (or any other women) to the group being punished. The time is also ripe to challenge the Selective Service System itself, and on February 10, Representatives Mike Coffman (R-CO), Peter DeFazio (D-OR), Jared Polis (D-CO) and Dana Rohrabacher (R-CA) introduced a bill that would achieve both. H.R. 4523 would repeal the Military Selective Service Act, abolishing the registration requirement for everyone, while requiring that “a person may not be denied a right, privilege, benefit, or employment position under Federal law” for having refused or failed to register before the repeal. A petition is now circulating to support this sensible and timely effort. [Editor’s note: as of our publication date, H.R. 4523 had been assigned to the House Armed Services Committee Subcommittee on Military Personnel. No hearing date had been announced.]
Despite the spin that trivializes registration (“It’s just registration, it’s not a draft”), these discussions serve as a renewed reminder that, as the Supreme Court said in 1981, “the purpose of registration is to develop a pool of potential combat troops." The purpose of registration is to prepare for war. Our daughters and our sons deserve better.
The Center on Conscience & War (CCW) was founded in 1940 to protect the rights of conscientious objectors. Our work continues today, providing technical and community support to all those who oppose their participation in war or the preparation for war.
Lillian Schlissel, Conscience in America (New York: Dutton, 1968)
Harrop A. Freeman, “A Remonstrance for Conscience,” Univ. Penn. Law Rev., vol. 106, no. 6, pp. 806-830, at 811-812 (April 1958) (reciting the drafting history in detail).
Selective Service System Annual Reports to Congress, 1981-2011
Richard Flahavan, Selective Service System Associate Director, Public and Intergovernmental Affairs, in a meeting between Selective Service and the staff of the Center on Conscience & War, Nov 27, 2012
Selective Service System Annual Report to Congress, FY 2015, https://www.sss.gov.
Rostker v. Goldberg, 453 U.S. 57 (1981).
Petition to pass H.R. 4523, http://diy.rootsaction.org/petitions/pass-the-new-bill-to-abolish-the-military-drafthttp://diy.rootsaction.org/petitions/pass-the-new-bill-to-abolish-the-military-draft
This article is from Draft NOtices, the newsletter of the Committee Opposed to Militarism and the Draft (http://www.comdsd.org/).
Update: On 4/27/2016, after this article was written, the House Armed Services Committee voted to add an amendment to the annual Department of Defense spending authorization bill (H.R. 4909) that would authorize the President to order women to register with Selective Service. It was not certain whether the amendment would be allowed to remain in the bill, or whether the Senate would approve something similar. Also, a new petition favoring complete repeal of the Military Selective Service Act was posted at http://www.thepetitionsite.com/312/180/604/.