By Bill Galvin and Maria Santelli, Center on Conscience & War[1] [1]
With the combat restriction for women in the US 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 [2], 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,[2] [3] and was written into early drafts of what became the First and Second Amendments to the Bill of Rights of the US Constitution.[3] [4] 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.
After the war in Vietnam ended 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 US could be ready for war at any time. This is still the law of the land today: virtually all males residing in the US and all male citizens between the ages of 18 and 26 are required to be registered with Selective Service.
The penalties for failure to register are potentially quite severe: it is a federal felony carrying a penalty of up to 5 years in prison and a fine of up to $250,000.[4] [5] Since 1980 millions of young men have violated the law by failing to register. And of those who did register, millions more violated the law by failing to register during the time period prescribed in the law.[5] [6] Since 1980 a grand total of just 20 people have been prosecuted for failure to register. (The last indictment was on January 23rd, 1986.) Almost all of those prosecuted were conscientious objectors who publicly asserted their non-registration as a religious, conscientious or political statement.[6] [7]
Initially, the government planned to prosecute a handful of public resisters and scare everyone else into complying with the registration requirement. (In criminology, this enforcement strategy is called “general deterrence.”) The plan backfired: conscientious objectors facing prosecution were on the evening news talking about their values, asserting that they were answering to a higher moral law, and non-compliance with registration actually increased.
In response, beginning in 1982, the federal government enacted punitive legislation and policies designed to coerce people to register with Selective Service. These laws, commonly called “Solomon” laws after the member of Congress who first introduced them (not because of their supposed wisdom!), mandated non-registrants be denied the following:
- Federal financial aid to college students;
- Federal job training;
- Employment with federal executive agencies;
- 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 legally or administratively 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[7] [8] 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 be registered.[8] [9] Yet, in a convoluted circular argument, government officials have asserted that getting someone to register is doing that person a favor, because failure to register makes them ineligible for these government “benefits.” In fact, it was that attitude that caused the former director of Selective Service Gil Coronado to observe,
“If we are not successful in reminding men in the inner cities about their registration obligation, especially minority and immigrant men, they will miss out on opportunities to achieve the American dream. They will lose eligibility for college loans and grants, government jobs, job training and for registration-age immigrants, citizenship. Unless we are successful in achieving high registration compliance, America may be on the verge of creating a permanent underclass.”[9] [10]
Rather than work to eliminate these extrajudicial penalties for non-registrants, and really level the playing field for all, Selective Service has encouraged states to adopt additional penalties for those who do not register for the draft. According to the 2015 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 access to financial aid.[10] [11]
In the years since the federal government implemented Solomon-style penalties, 44 states, the District of Columbia, and several territories have enacted legislation that encourages or coerces registration with Selective Service. These laws take myriad forms: some states refuse government financial aid to unregistered students; some refuse enrollment in state institutions; some of those who do not register pay out-of-state tuition; and some states levy a combination of these penalties. Bills that restrict employment with state governments have passed in 20 states and one territory.
Laws linking registration to a driver’s license, learner’s permit, or photo ID vary by state [12], from requiring registration in order to be eligible to receive an ID or license, which is the position taken by most states, to simply providing the opportunity for one to register. The only states that have not currently passed any state legislation regarding registration with Selective Service are Nebraska, Oregon, Pennsylvania, Vermont, and Wyoming.
Any violation of the law carries a potential penalty if one is convicted. Yet – and it is worth repeating — the government has prosecuted no one for violating Selective Service law since 1986, while hundreds of thousands of US citizens have been penalized since that time.[11] [13] This practice of penalization without prosecution or conviction subverts the system of law established by our Constitution. Furthermore, penalizing people in ways that are unrelated to their alleged offense – an offense for which they have not been charged – runs counter to our fundamental system of law and our notion of justice. If there is a 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 the Chief of Staff of the Army and the Commandant of the Marine Corps both testified before the Senate Armed Services Committee in support of extending the registration requirement to women. Two days later, Representative Duncan Hunter (R-CA) and Representative Ryan Zinke (R-MT) introduced the Draft America’s Daughters Act [14], which, if passed, would 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.
Back in 1981, when the single-gender Selective Service registration was challenged as sex discrimination, the Supreme Court ruled that a male-only Selective Service registration was legal. They said, “[S]ince women are excluded from combat service,” they are “simply not similarly situated for purposes of a draft or registration for a draft,” and Congress, having constitutional authority to “raise and maintain” the military, had the authority to consider “military need” over “equity.”[12] [15]
But times have changed, and women are now at last recognized as “similarly situated.” Now that women are no longer barred from combat, the reason the Court allowed a male-only registration system no longer exists. Several court cases in recent years have challenged the male-only draft on constitutional “equal protection” grounds, and one of those cases was argued [16] before the 9th Circuit Federal Court of Appeals on December 8, 2015. On February 19, 2016, the court of appeals rejected the lower court’s technical reasons for dismissing the case and sent it back for further consideration.
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 rights of individuals of conscience to travel are restricted. A photo ID is usually required to purchase an airline or train ticket, or tickets for travel on other modes of transportation even inside the US. The Universal Declaration of Human Rights Article 13.1 states, “everyone has the right to freedom of movement and residence within the borders of each state.”[13] [17] The effect of these laws is to undermine this basic human right. Furthermore, if so-called Voter ID requirements continue to spread and are upheld by the courts, these laws may restrict the right of conscientious objectors to a fundamental democratic 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, Representative Mike Coffman (R-CO), along with Representatives Peter DeFazio (D-OR), Jared Polis (D-CO) and Dana Rohrabacher (R-CA) introduced a bill [18] 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 [19] is now circulating to support this sensible and timely effort.
Despite the spin that trivializes registration (“It’s quick, it’s easy, it’s the law;” It’s just registration, it’s not a draft), these discussions serve as a renewed reminder that, as the Supreme Court said back 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.
[1] [20] 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.
[2] [21] Lillian Schlissel, Conscience in America (New York: Dutton, 1968) p. 28
[3] [22] Ibid, p. 47. Here Schlissel is citing James Madison, Proposals to the Congress for a Bill of Rights, Annals of Congress: The Debates and Proceedings in the Congress of the United States, Vol. I, First Congress, First Session, June 1789 (Washington DC: Gales and Seaton, 1834). See also 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).
[4] [23] 50 U.S.C. App. 462(a) and 18 U.S.C. 3571(b)(3)
[5] [24] Selective Service System Annual Reports to Congress, 1981-2011
[6] [25] http://hasbrouck.org/draft/prosecutions.html
[7] [26] We use the pronoun “he” because the law only affects males at this time.
[8] [27] 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
[9] [28] FY 1999 Annual Report to the Congress of the United States, from the Director of Selective Service, p.8.
[10] [29] https://www.sss.gov/Portals/0/PDFs/Annual%20Report%202015%20-%20Final.pdf [30]
[11] [31] ibid.
[12] [32] Rostker v. Goldberg, 453 U.S. 57 (1981).
[13] [33] Article 13 of the Universal Declaration of Human Rights http://www.un.org/en/documents/udhr/index.shtml [34]