Schlesinger v. Ballard
42 L. Ed. 2d 610, 1975 U.S. LEXIS 22, 419 U.S. 498 (1975)
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Rule of Law:
A federal statutory scheme that accords different treatment to male and female military officers does not violate the Due Process Clause of the Fifth Amendment if the differing treatment is based on the demonstrable fact that male and female officers are not similarly situated with respect to professional opportunities.
Facts:
- Robert C. Ballard was a male lieutenant in the U.S. Navy with over nine years of active commissioned service.
- Under federal statute 10 U.S.C. § 6382(a), male lieutenants who were twice passed over for promotion to lieutenant commander were subject to mandatory discharge.
- A separate statute, 10 U.S.C. § 6401, provided that female lieutenants were subject to mandatory discharge for want of promotion only after they had completed 13 years of active commissioned service.
- Due to another federal statute, 10 U.S.C. § 6015, female line officers in the Navy were restricted from assignment to duty in aircraft engaged in combat missions and on most naval vessels.
- After being considered and passed over for promotion to lieutenant commander for a second time, Ballard faced mandatory discharge under § 6382(a) before reaching 13 years of service.
Procedural Posture:
- Robert C. Ballard filed suit in federal district court seeking to prevent his mandatory discharge from the U.S. Navy.
- A three-judge district court was convened to hear Ballard's constitutional claim.
- The district court, relying on Frontiero v. Richardson, held that the statute mandating Ballard's discharge was unconstitutional.
- The district court issued an injunction preventing the Navy from discharging Ballard before he had completed 13 years of commissioned service.
- The government defendants (appellants) filed a direct appeal of the district court's injunction to the U.S. Supreme Court.
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Issue:
Does a federal statutory scheme that mandates the discharge of male naval officers who have been passed over for promotion twice, while allowing female naval officers to serve for 13 years before a mandatory discharge for non-promotion, violate the Due Process Clause of the Fifth Amendment?
Opinions:
Majority - Mr. Justice Stewart
No, the statutory scheme does not violate the Due Process Clause of the Fifth Amendment. The different treatment of men and women naval officers reflects the demonstrable fact that they are not similarly situated with respect to opportunities for professional service. Unlike the classifications struck down in Reed v. Reed and Frontiero v. Richardson, which were based on archaic, overbroad generalizations and administrative convenience, this classification is based on real differences. Female officers are statutorily restricted from combat and most sea duty, limiting their opportunities to compile service records comparable to those of their male counterparts. Congress could rationally conclude that providing female officers with a longer tenure before mandatory discharge would compensate for these restricted opportunities and promote 'fair and equitable career advancement.' This rationality is further supported by the fact that in Navy corps where men and women are similarly situated, such as the Medical and Dental Corps, they are subject to the same attrition rules.
Dissenting - Mr. Justice Brennan
Yes, the statutory scheme violates the Due Process Clause of the Fifth Amendment. Legislative classifications based on gender must be subjected to close judicial scrutiny and can only be sustained if they serve compelling governmental interests. The majority's 'compensatory' justification is a post-hoc rationalization not supported by the legislative history. The record shows that in 1967, Congress intended to equalize promotion and tenure systems for men and women, not create special advantages for women. The legislative history explicitly stated there was 'no logical basis' for the tenure differences. Furthermore, since men and women compete for promotion on separate tracks, it is unclear how women are disadvantaged in promotion opportunities or how longer tenure compensates for any other restrictions. The gender-based classification is not rationally related to any legitimate legislative purpose, let alone a compelling one.
Dissenting - Mr. Justice White
Yes, the statutory scheme is unconstitutional. For the most part, I agree with the reasoning articulated in Mr. Justice Brennan's dissenting opinion.
Analysis:
This decision established an important qualification to the Court's developing jurisprudence on gender discrimination. By distinguishing this case from Reed and Frontiero, the Court signaled that not all gender-based classifications require heightened scrutiny. It created a path for upholding such classifications if they are based on demonstrable, factual differences between the groups being treated differently, rather than on stereotypes. This 'similarly situated' analysis, combined with deference to Congress in military affairs, allows for differential treatment intended to be remedial or to account for disparities created by other laws.
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