Selective Service Registration: Coercion of Conscience - Center on Conscience & War (2024)

Selective Service Registration: Coercion of Conscience?

Introduction

The draft has met with serious resistance from communities of faith and people of conscience throughout its history. While tolerated by the population at large during times of crisis, virtually all religions teach that killing is wrong. Many faith traditions have spoken directly to the immorality of a government requiring its citizens to kill as a violation of the fundamental values taught by those faith traditions.

Introduction

The draft has met with serious resistance from communities of faith and people of conscience throughout its history. While tolerated by the population at large during times of crisis, virtually all religions teach that killing is wrong. Many faith traditions have spoken directly to the immorality of a government requiring its citizens to kill as a violation of the fundamental values taught by those faith traditions.

In fact, it was churchesthat founded the Center on Conscience & War[1] in 1940, when the US began its first peacetime draft registration in preparation for entry into World War II. Those same churches had worked vigorously during the late 1930’s to ensure better protections in the law for conscientious objectors. While those legal protections encouraged thousands of conscientious objectors to willingly register, there remained thousands who didn’t register as a matter of conscience. As the U.S. Supreme Court explained, “the purpose of registration is to develop a pool of potential combat troops.”[2] For many conscientious objectors, submitting to that registration is, in itself, a form of participation in war. The debate between World War II conscientious objectors who registered and those who did not continued for more than 50 years.

After the war in Vietnam came to a close in early 1975, draft registration ended as well. In 1980 President Carter reinstated draft registration as a message to the Soviet Union that US could be ready for war at any time. This is still the law of the land today: 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. Registration should happen during a 60 day period that begins 30 days before their 18^th birthday. Immigrants of draft age who come to the US are given 30 days to register.[3]

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] Since 1980 millions of young men have violated the law by failing to register. And for those who did register, millions more violated the law by failing to register during the time period prescribed in the law.[5] Since 1980 a total of 20 people have been prosecuted for failure to register. (The last indictment was on January 23^rd, 1986.) Almost all of those prosecuted were conscientious objectors to the draft who publicly asserted their non-registration as a religious, conscientious or political statement. [6]

Initially, the government planned to prosecute a handful of public resisters and scare everyone else into complying with the registration requirement. But it backfired. Even in rural conservative areas like Iowa, and military towns like San Diego, conscientious objectors facing prosecution were on the evening news talking about their values, and that they were answering to a higher moral law. This caused other young men to think about what draft registration really meant and to realize they also had a choice. Non-compliance with registration actually increased in those areas.

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, mandated non-registrants be denied the following:

• Federal financial aid to college students;
• Federal job training to non-registrants;
• Federal financial aid to Medical Students;
• Employment with federal executive agencies to the same group;
• U.S. Citizenship to immigrants.

Selective Service has consistently stated 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 with Selective Service. Because there is a five-year statute of limitations for violations of the Selective Service law, once a non-registrant turns 31 he 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. Selective Service officials have also reported that immigrants who were required to register but did not, and who are now over the age of 31, would not have their failure to register be an obstacle to obtaining citizenship because of the statute of limitations.[7]

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".[8]

Rather than work to eliminate these extra-judicial 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.

In a meeting on November 27, 2012, Richard Flahavan, the Associate Director for Public and Intergovernmental Affairs, stated that registration with Selective Service is “a free will, overt action by the individual.” However, according to the SSS Annual Report to Congress, over 60% of the men registered in 2011 were coerced by measures such as driver’s license restrictions or limits on financial aid.[9]

There is little political interest in bringing back the draft. The Pentagon does not want it. Yet the registration remains a burden upon our nation’s young men. The extrajudicial penalties are making life more difficult for those who are marginalized—and even creating hardships for people. And it particularly targets those who are “conscientiously opposed to participation in war in any form”[10] and who believe that registering with Selective Service is a form of participating in war.

Why does Selective Service Registration Matter Anymore?

Certainly it cannot be denied that the goal of Selective Service registration is to support war-making. Governmental officials have repeatedly interpreted registration compliance as support for U.S. military policies and support for the draft.[11] For many conscientious objectors, simply registering for the draft through the Selective Service System is a form of participation in war. Some refuse to register because there is no opportunity to register as a conscientious objector and, if this were provided, they would register. Some feel that the draft (and Selective Service registration) is unconstitutional and a violation of the very freedoms the military claims to protect, and therefore, they feel it is their patriotic duty to resist.[12]

Legal protection for conscientious objectors was provided in the constitutions of several of the original colonies[13], and was written into the first draft of the Bill of Rights of the US Constitution.[14] Laws that deny education, employment or other opportunities amount to an unacceptable burden upon those individuals who cannot in good conscience register. These laws in fact punish and marginalize those who live their lives true to the very essence of our democracy.

No one has been drafted in the US since 1973. When President Carter re-instituted registration for Selective Service in 1980 — more than a decade before those who are now required to be registered were born — there was considerable media attention given to the registration requirement. Selective Service registration is not in the news very much these days, and CCW continues to hear from people who are surprised to learn that registration is still even required for young men.

This knowledge gap is often cited as a justification for the coercive laws that condition certain public benefits upon registration for the draft. In a very bizarre circular argument, some of the bills in state legislatures that penalize non-registrants have wording similar to what is found in HB 635 from the Florida state legislature (2001). This bill requires registration with Selective Service as a condition of getting a drivers license in the state of Florida: “it is the intent of the Legislature through the adoption of this act to protect state residents from the penalties associated with the failure to register with the SSS”[15]

“Solomon” in the States

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 have a combination of these laws. 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. Some states simply provide the opportunity to register with Selective Service as one applies for a license, while more than 30 make it mandatory. In the states where it is mandatory, simply applying for a license (or ID) automatically registers a young man with Selective Service if he is required to be registered. In addition, several states require underage males who submit the license or ID application to be automatically registered upon their 18^th birthday. Other states provide registration as an option for them.

According to the Selective Service 2011 Annual Report to Congress, it is their goal “to achieve 100 percent DLL (driver’s license legislation) coverage in all states and territories.”[16] To achieve this goal, Selective Service has, on occasion, provided federal funding to states for the purpose of implementing registration legislation. (Selective Service only provides funding when the driver’s license laws are mandatory because that saves them money in the long run, by significantly reducing the need for other enforcement efforts in that state.[17])

In more than 20 of these states the law specifies that registration is required to obtain a photo identification card issued by the government. However, since state identification cards usually originate from the same agency as a driver’s license, this policy may be more widespread than is clearly specified in the legislation we found.

The only states that have not currently passed any state legislation regarding registration with Selective Service are Nebraska, Oregon, Pennsylvania, Vermont, and Wyoming. In 2002, Maryland passed a law providing the option of registering as one applies for a license, but it was never implemented because it was conditioned upon funding from the federal government that was not received.

Legal Concerns

Any violation of the law carries a potential penalty if one is convicted. As mentioned earlier, the government has prosecuted no one for violating Selective Service law since 1986, yet hundreds of thousands of US citizens have been penalized since that time. 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 (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 being judged by a jury of their peers. If there is no political will to enforce a law, the law should be rescinded.

A fundamental principle of the US legal system is that one is “innocent until proven guilty,” and that someone shouldn’t be punished for violating a law unless found guilty in a court of law. All of the “Solomon-style” laws completely subvert this principle. They penalize those who have not been found guilty of a crime–or have even been charged with a crime. Legislation of this kind is generally called a Bill of Attainder. A bill of attainder is "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial."[18] Article I, Section 9 of the US Constitution states, “No Bill of Attainder or ex post facto Law shall be passed.”

Additionally, the 5^th Amendment to the US Constitution protects people from self-incrimination. Requiring people to certify whether they have violated the law to obtain certain benefits could be requiring them to incriminate themselves. If a male who is more than 30 days past his 18^th birthday applies for financial aid (or a driver’s license) and checks the box to have that government agency submit his information to Selective Service to get registered, he is telling the government that he violated the law by not registering when he was required to do so by law.The original Solomon law was challenged in court as a Bill of Attainder and as a violation of the 5^th Amendment protection from self-incrimination.

In 1984 the US Supreme Court ruled that the Solomon law was not a Bill of Attainder or a violation of the 5^th Amendment of the Constitution. Concerning the 5^th Amendment, the court ruled that no one was required to apply for financial aid, so no one was being forced to incriminate himself. Furthermore, as a practical matter, Selective Service was not prosecuting those who register late, so prosecution could be avoided by simply registering.But the Court decision about the Bill of Attainder question is more relevant for us today. The Court ruled, “The legislative history shows that Congress' purpose in enacting [the Solomon Amendment] was to encourage registration by those who must register but have not yet done so. [The law’s] requirements are not irreversible but can be met readily by either timely or late registration.”[19]

In 1984, the entire class of people denied financial aid by the Solomon Amendment were under the age of 26 and in fact, could, if they so desired, register. But now, the class of those denied financial aid includes many (the majority) who are 26 or older, and cannot now register. It is now possible that a new challenge could be brought by someone 26 or older, who is denied financial aid (or federal or state employment). While this challenge is ripe for those who are too old to be registered and are penalized, another challenge affects those who are not yet old enough to register for the draft and are being harmed by these penalties.

The practice of allowing underage males (or their parents) to authorize the state to forward to Selective Service the personal information required to register the person when he turns 18 is in violation of several established regulations and legal principles. First, the registration requirement is for males between the ages of 18 and 26. Selective Service regulations specify that “[n]o person who is not required by selective service law or the Proclamation of the President to register shall be registered.”[20] The states that have these underage laws say that they are not registering underage people, but rather collecting information to register them as they become of proper age. But here’s the real problem: Those who are not yet 18 cannot register, nor can their signature be binding. Most contracts signed by individuals under the age of 18 are voidable if the minor decides he or she does not wish to continue with the proceedings. One way minors can be held accountable, though, is if the contract is signed by a parent or legal guardian. States require this of minors, which implies that the registration is legitimate because the parent signed for the minor. However Selective Service law stipulates that he must “present himself for and submit to registration [emphasis added].”[21] So someone cannot be registered by someone else–not even a parent, and not by the DMV.

Two states in particular, Virginia and South Carolina, require the parent to sign that they (the parents) are authorizing the DMV to register the child as he turns 18.[22] In fact, if the parent will not authorize automatic registration of their son, Virginia law punishes the child, who may actually be willing to register upon turning 18, by denying him a driver’s license or permit. If a parent is a conscientious objector, or feels that draft registration is an important act of citizenship the child should make a his own conscientious and conscious decision about when he turns 18, and refuses to give consent, the child is punished. These laws violate the Due Process Clause of the Fourteenth Amendment and the Free Exercise Clause of the First Amendment to the United States Constitution. The law also infringes on the child’s privilege to drive. Driving is a privilege that, as the United States Supreme Court has recognized, is a “virtual necessity for most Americans.”[23]

42 U.S.C. Section 1983[24] may provide the means for successfully challenging such laws. The Fourteenth Amendment’s Due Process Clause provides that a state may not “deprive any person of life, liberty, or property without due process of law.” This clause encompasses the right of parents to make decisions concerning the care, custody, and control of their children.[25] Parent’s fundamental right to raise their child as they see fit may not be infringed upon, absent a compelling interest, which must be for the purpose of protecting the child’s health or welfare. Preventing parents from raising their children as they see fit constitutes such an infringement. Furthermore, the child is punished, not for any offense that he has committed, but for the acts of his parents.

Perhaps the strongest possibility for challenging Selective Service registration comes from recent changes in Department of Defense (DoD) policies concerning the “combat exclusion” of women. On Jan. 23, 2013 Secretary of Defense Leon Panetta announced he was “lifting the military’s official ban on women in combat, which will open up hundreds of thousands of additional front-line jobs to them.”[26] In 1981, the male only Selective Service registration was challenged in federal court as sex discrimination. In Rostker v. Goldberg the Supreme Court ruled that a male-only Selective Service registration was legal. As the Supreme Court ruled, “. . . since women are excluded from combat service by statute or military policy, men and women are simply not similarly situated for purposes of a draft or registration for a draft, and Congress' decision to authorize the registration of only men therefore does not violate the Due Process Clause.”[27]

Among the facts considered by the court at the time of this decision was testimony by military officials before Congress that were they to draft significant (or equal) numbers of women into the military who were limited to non-combatant roles, this would limit military flexibility. The Court ruled that Congress, having constitutional authority to “raise and maintain” the military, had the authority to consider “military need” over “equity.”[28]

While the exclusion of women from combat roles has been eroding in practice, regardless of the official “combat exclusion,”[29] this official change in policy makes it very clear that this distinction between “military need” and “equity” no longer exists. Senator Carl Levin, chairman of the Senate Armed Services Committee, said in a statement “…it reflects the reality of 21st century military operations.”[30] Considering that this change originated with military leadership,[31] rather than outside political pressure, the rationale cited by the Supreme Court for upholding a male only draft registration holds even less water at this time.

Conclusion

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. This denial of educational opportunities and jobs affects not just people of conscience, but as former Director Coronado correctly observed, it places a particular burden on those at the bottom of the socioeconomic ladder.

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.”[32] The effect of these laws is to undermine this human right. Furthermore, if voter ID laws 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 make the argument that the state legislators behind the acts tying benefits to registration with the SSS are knowingly and purposefully looking to harm or disenfranchise these constituent groups, but that is no less the effect of their actions. The time is ripe for challenges to these punitive laws. The time is also ripe to challenge the Selective Service registration itself.

Click here for a summary of state laws that encourage or compel registration with Selective Service.