time women were prohibited from combat and that seemed to be sort of the rallying point in the majority of course you're vigorous to say it's when justice marshall than others as i recall in th and by its terms the question presented in roster is the same as the question presented here and the court's holding it the same now it's true that one of the court's justification for maybe its main justification has changed but the supreme court has been very clear that when an underlying justification also since january of twenty six thousand and so that's been four years but i wouldn't say the congress has done nothing congress has done two important things st congress almost changed the law so congress went through the amendment process within the national defense authorization act this court to get ahead of that process and hold that it is unconstitutional for congress to maintain the status quo while it liberates about this question you know even if rocker doesn't control which which we think it does but even if roster doesn't control second congress roster makes clear the courts may take into account administrate of problems and says it's not for this court to dismiss such problems as insignificant in the context of military preparedness and the exit in seas of future mobilization that's not something that occurs in an intermediate or new context as we know from people around but it is something that the court can look at here and rd roster makes clear that congress is not required to do the same level of close tailoring between me and then and that it would be required to do an myth strict scrutiny applies for effectively a referral world at this point and nonetheless the court is unmoved in that case by the fact that the government is unable to produce any studies showing that there will be harm to military sprit decor from combat positions they could have been filled by women even before women were admitted to come out and if you if you apply those sort of three aspects to the differential review here it's clear that the mill of the male only re survives constitutional muster so roster itself you know really means that and so in terms of the end roster itself found that the government's interest in raising if according army is qualified as a quote important interests even under that higher immediately standard front lines have fallen and we need we need new frontline soldiers given the physical differences between men and women my friend has not shown that congress could not have rationally believed that a randomly selected pool of women would be less likely on average to produce you know the same number of combat troops combat ready troops that are randomly selected pool of men would have been you know that is alluded to in deity's two thousand and seventeen report in the in the record secretary carter's implementation concerns held by some that conscripted women would have a lower chance of survival if forced to serve in direct ground combat roles so these are all reasons that congress could rationally have wanted to preserve a status quo while it studied these important issue s and then we turn to those sort of those administrative costs and burden that the courts allowed to consider in this area if there is in fact a lower yield from a from a you know an average taken off the street pool of young women as opposed to taking up the street pool of young men of combat ready soldiers that would make it more difficult to allocate training resources affectively and efficiently which is something the roster specifically looked at so you can think of it in terms of they would need more boot camp and they would need more trainers just because your heels lower so you got to start with a larger pool in addition you know conscripting equal numbers of women would dramatically change the gender balance in the forces right now right now since tw all combat positions are open to women but they are not filled in equal measure by men and women whereas if we had a draft that all that had an influx of women and change those percentages there are a number of just sort of ticky tack things that would have to change  so this is sort of presented but if you look at equipment sizing and supplier two of the things mentioned in the record so if you have a small number of women in combat you might have a small number of combat style equipment that would that are tailored to women and their specific healing facilities all of these are reasons why when that when the military st integrated women into the military more broadly and also into the into into combat more more specifically a multi year implementation plan and was with a vision that's very different than the timeline you see for for a draft or for corruption in a conscription context you're looking at a matter of days right that the deity or more talk about in terms of how many people can we raise i so it's it's on point that is simply not true what what's being argued here is chu that only the supreme court can reverse its own decision but as some federal courts of already explained there's a difference between following a decision and except following a precedent and extending a precedent when new circumstances have changed that are significant in this case that the ban on women it's not anticipate torrie it's looking at the ruling it's still applying roster but under the new circumstances it's not changing roster roster is still alive and well in a circumstance where women are not allowed in combat us two of three in that case the city of new york was standing in a very brief in the facts but the city of new york was sending public school teachers to teach in profiles pools so taxpayers filed a taxpayer lawsuit challenge it under the establishment clause the trial court sided with the school board the court of appeal reversed and the the supreme court upheld that reversal and and and so there was a no i'm sorry that yes that sided with the school board and then the supreme court upheld the reversal so there was an injunction on the school board from doing that so the school were changed and started having these teachers teach parochial lessons within the public schools instead then the school board sought relief from the injunction that the trial the district court sided against a gainst the school board and it went up to the supreme court and it was reversed and the supreme court stated and i and i quote in in roof over says inmates of so folks can eat jail we held that it is appropriate to grant a rule sixty p five motion when the party seeking relief from an injunction or consent we can show a significant change in either factual conditions or in law may recognize subsequent changes and it goes on to describe how courts can in fact do that if there are completely different circumstances you're in and in fact another case recently in new jersey held the exact same thing that was the kyle the kyle l case where a woman and i cited in my brief were a woman is challenging the selective service claiming that it discriminates against her because she wanted to register and they made the same argument that only the supreme court can reverse itself and that court stated no and the exact language said there's a difference between following a president and extending it so by they said we're just simply exist if they refuse to throw the case out on the selective service  dismiss and they say there's a whole there's a whole completely different set of circumstances what the selective service is that is innocently arguing here is that when circumstances change so much that the supreme court decision no longer applies because the factual circumstances resort different a person would have to wait years and years in order to get any kind of civil rights relief because they have to wind their way all the way up to the supreme court and that's that would just be a very bad public policy to begin with and it's not with the cases say that there's that they're citing state well does not stand for that position in fact state oil says but starting this isn't decisis is not and in  inexhaustible sorry command in the area of antitrust law there's a competing interest well represented in this court's decisions in recognizing in adopting a change circumstances it's none of the cases that they  that under changed circumstances lower courts cannot make it different from what the supreme court held that's just not true and i'll leave it at that and move on to the issue of deference counsel defer to the only expert statement or anything of substance in this case presented to support their position is that of the pentagon report which side is completely on this on the side of the plaintiffs in this case and  emphatically that we ought to be including woman in the draft and it looks at all the different issues that they're raising like administrative costs and things like death and it it also talks about how this is creates both the perception and reality of unfairness in that it flat out discriminates against men it's sex discrimination that subject to heightened scrutiny it's not just a mirage we're talking about here there are stiff penalties for failure to register and we know that those penalties there's ten years five years in jail ten thousand or fine denial of federal benefits we know they've been applied to men in the elgin case a homeless man who had forgotten to this record in this case looked at the congressional record and said the only the primary concern of congress when they excluded from the woman from the draft was that women were banned from combat and that the issues that council is raising about capacities and things like that were discussed only in passing and very minimally so they have they have not met their burden of providing evidence to support the arguments that there may be rational basis  military serving any more meaningful or rigorous and who various is in the economic regulatory setting which is kind of judicial basically i don't know that we make a difference between the military and perhaps the private sector but the case law is very clear that this that sex discrimination even in the military goes by heightened scrutiny intermediate  scrutiny in the case of u s versus virginia it says that that intermediate scrutiny in order to meet that you you have to show an exceedingly persuasive justification for the discrimination it can't be just persuasive on its own it persuasive i would analogize that to the clear and convincing standards a lot of courts apply it's a very strong standard and they've come nowhere near meeting that standard as a district court hell they haven't shown any basis at all women are not allowed in combat we're not here to debate the issue of whether women should or shouldn't the department of defense has decided that they are so that barrier is gone and there's no more justification i would argue even on a rational basis for excluding women from the draft if there is going to be a draft and both men and women are allowed in all combat roles there is no further justification and the pentagon has said that very clearly in its thirty seven page report the only substantive expert document that we have we have nothing else other than arguments from lawyers that are very speculative that aren't even in the record many of them there is nothing else that solidly looks at this issue but the pentagon record report if we're going to have deference who else should we defer to except the pentagon and the department of defense i don't agree it should be a bunch of lawyers in congress it should be the pentagon and they have spoken very loudly and clearly i've submitted that report to them or i think i would encourage the court i'm sure you have read it encourage the court to read it again that discrimination by itself causes harm that discrimination by itself carries the baggage of sexual stereotypes sex discrimination in particular and causes non economic harm to those people that are discriminated against we know right now that thirty states hi selective service registration to driver's license about thirty one of them to to school on student loans or to employment eight states out deny men the right to apply that state college if they're not registered for the draft i've had and we know that since and i've submitted this to the fore since one thousand nine hundred and three over a one million men have requested formal copies of the draft status and that's the st step taken when you're appealing a denial of benefits so we're talking about a very large number of men who are directly affected by this not just ones in the case like elegy so this this is very serious and putting aside those kind of the economic damages there is the stereotype that's being expressed and what every time we take that make a young man who turns eighteen like james less my sister or like anthony davis and tell them you but not your sister or not your female friends who some of whom are just as strong as you are volved in professional sports you have to register your body as an on call warrior for the state we're telling them that the is males are disposable and that male disposability is a stereotype that needs to be fought men to this day still don't speak out about their discrimination against them in many other areas like child custody and paternity and criminal sentencing and many other type of things services in the midst of violence programs i've had to take on many of these type of of cases because it's rampant we know not only that men get higher sentences for the same crime when all other factors including including number of priors and family situation but drunk drivers get higher sentences when they kill a woman than when they kill a man and these are things that are documented but hardly talked about in academia or in government and i'm i know that's going beyond the scope of this case the it's part of what the supreme court talks about bisexual stereotypes we are sending a message we're conditioning people to accept sex discrimination when it's against men and that's why we hardly hear about these kind of things and people who dare to speak up about it are called names like massage or things like that when all they're really asking for is equal rights i would point out another thing your honor even though this is the decision here the standard of used in the overall i would point out that the just record in this case did also make a number of factual findings that would fall under the clearly erroneous standard one of them is that that men and women are similarly situated with regard to the selective service that is a factual finding and others are that there is that the selective service has provided no evidence to meet its burden of showing for example that women are less likely to enlist that they would be less female englishman or that there would be some major tradeoff if women are required to register for the draft the district court also found that concern was women being banned from combat and that's why they excluded one woman also that congress has been debating this issue since one thousand nine hundred and eighty with no definite end in sight those are the words of the district court those are i would argue factual findings that go by a clearly erroneous standard and as the court in u s versus virginia said a cleary clearly erroneous standard in order to be that it is the the the ever has to be so strong that it strikes the court like a five week old dead on refrigerated fish it's a very strong standard that has to be very clearly erroneous and in this case i don't think any of those finding that i think there are actually very good findings and the district district court made a very sound decision i would just add finally that we are talking here about both rights and responsibilities and we have opened the door and given women the right to all combat roles but coming with that is the responsibility to register if there is a draft we take no position on whether there should or shouldn't be our position is that if there is one and women are allowed in going to combat roles then there is no