When the Soviet Matrimony invaded Transitional islamic state of afghanistan in 1979, President Jimmy Carter took steps to set the nation for armed conflict. He reinstated the requirement, then lapsed, that young men register for the typhoon—and called on Congress to update the law to allow anybody to register, regardless of gender. Congress didn't mind the telephone call, and last week the Supreme Court announced that information technology would non take up the outcome either.

Many see this equally a missed opportunity. Men-simply registration reflects the outdated and sexist notion that women are less fit to serve in the armed forces and, on the flip side, that men are less fit to stay home as caregivers in the result of an armed conflict. Such stereotypes demean both men and women. Limiting registration to men too devalues the contributions of women who serve in today's all-volunteer force. 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 Arrangement doubled downwards in a recent public service proclamation better suited for the cast of Sabbatum Night Live than the United States government. The 30-second ad shows a fellow transform into a cartoonish Thousand.I. Joe after registering for the typhoon; his female parent, in shock, drops the dish she was washing.

"The United states Constitution prohibits the Federal Regime from discriminating on the basis of sex activity absent an 'exceedingly persuasive justification,'" wrote Justice Sonia Sotomayor in response to our petition. "The War machine Selective Service Act requires men, and only men, however, to register for the draft upon turning 18." But the court explained that information technology would not intervene while Congress considers a contempo report recommending universal registration. "It remains to be seen," the statement read, "whether Congress will end gender-based registration."

The courtroom doesn't typically provide its reasons for failing to hear a example, and so the brusque argument sent a powerful message that the justices should consider men-but registration significant. Equally noteworthy was the fact that Justice Brett Kavanaugh chose to bring together Justices Sotomayor and Stephen Breyer in signing it. The courtroom hasn't decided a constitutional case involving sex discrimination 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. Mon's argument reassuringly cited longstanding precedent, including several landmark cases litigated by the tardily Justice Ruth Bader Ginsburg during her years as director of the ACLU Women'south Rights Projection. As those decisions recognized, gender-based distinctions in law are by and large grounded in archaic stereotypes.

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

The Supreme Court last confronted gender-based registration in 1981, when it upheld the law because, at the fourth dimension, women were too excluded from combat roles. But the core premise for the court'due south 1981 conclusion is no longer true today: "The function of women in the war machine has changed dramatically since then," the courtroom noted on Monday. Most recently, in 2013, the military lifted the ban on women in gainsay in response to ii lawsuits, including one brought by the ACLU.

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

Though Congress has proved stubbornly resistant to alter, a prod from justices across the ideological spectrum provides reason to hope that this time will be different. And, if not, we'll be knocking at the Supreme Court'due south door one time again.