ROSTKER, DIRECTOR OF SELECTIVE SERVICE, Et Al. v. GOLDBERG Et Al.

Background

The dispute pits the federal government, acting through Selective Service officials, against a class of young men who were due to register within two weeks. A three-judge District Court had ruled that the Military Selective Service Act’s exclusion of women from registration was unlawful because it treated men and women differently, and it enjoined the Government from carrying out the planned registration of more than four million men born in 1960 and 1961 beginning July 21. The Government sought immediate relief to continue the registration while the case is reviewed.

Reasoning

A Justice considered the standard four-part test for an emergency stay. He found the constitutional question important and acknowledged uncertainty about how the full Court would rule on gender-based standards. The Justice concluded there was a fair prospect the Supreme Court might reverse the lower court. He also found that the Government would suffer irreparable harm if registration were blocked—harms tied to national defense, foreign-policy signaling, and wasted preparations and expense. Balancing those harms against the burdens on the men required to register, he decided the equities favored the Government and granted a stay of the District Court’s injunction.

Real world impact

The immediate practical effect is that the Government may go forward with the scheduled registration of young men while higher courts decide the constitutional question. Men who are called to register must still appear and be listed, though the Justice noted that if the men ultimately prevail those lists can be destroyed. The stay preserves the Government’s ability to implement registration for national security and foreign-policy reasons pending full review by the Supreme Court.