Schlesinger v. Ballard

Appellant
James R. Schlesinger, U.S. Secretary of Defense
Appellee
Robert C. Ballard
Appellant's Claim
That a rule establishing different guidelines regarding mandatory discharge for male and female officers in the U.S. Navy did not constitute a violation of the Fifth Amendment's Due Process Clause.
Chief Lawyer for Appellant
Harriet S. Shapiro
Chief Lawyer for Appellee
Charles R. Khoury, Jr.
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, Potter Stewart (writing for the Court)
Justices Dissenting
William J. Brennan, Jr., William O. Douglas, Thurgood Marshall, Byron R. White
Place
Washington, D.C.
Date of Decision
15 January 1975
Decision
That the differing classifications regarding rules for discharge and promotion of males and females are based in rationality; and that in exercising its broad constitutional mandate in making these classifications, Congress did notviolate the Due Process Clause of the Fifth Amendment.
Significance
Schlesinger v. Ballard touched peripherally on the volatile subjects of women in combat and of the principle behind affirmative action--that is, the application of differing sets of rules to different groups of people in order to attain a level playing field. The Court's decision in Schlesinger, to uphold statutes which provided different rules of tenure for men and women, signaled a willingness on the Court's part to accept certain types of discrimination inasmuch as the intent was to establish greater fairness. It wasdifficult, from a feminist perspective, to agree on the ultimate meaning ofSchlesinger. On the one hand, the ruling helped to ensure greater opportunities for women; on the other, to some it seemed based on an underlying view of women as "the weaker sex."
Lieutenant Ballard Receives a Mandatory Discharge
At the beginning of the events which brought about his legal action, Robert C. Ballard had actively served with the U.S. Navy for nine years. An officer,he had attained the rank of lieutenant, at the pay grade O-3. He had been unsuccessful, however, in his efforts to obtain promotion to lieutenant commander. His second attempt at promotion had failed, and he was therefore subject to mandatory discharge under guidelines established in Title 10 U.S.C. 6382 (a), which states in part:

Each officer on the active list of the Navy serving in the grade of lieutenant, except an officer in the Nurse Corps. . . shall be honorably discharged on June 30 of the fiscal year in which heis considered as having failed of selection for promotion to the grade of lieutenant commander or major for the second time.

According to the Supreme Court when it later reviewed his case, Ballard would receive a "lump- sum" severance payment of $15,000, guaranteed under section (c) of the same code; but by being forced to leave the service seven years short of the 20years necessary to be designated as "retired" from the military, he would miss out on substantial retirement benefits.
Ballard brought suit in federal court, citing a different rule governing mandatory discharge for female officers who similarly failed to obtain promotion.Title 10 U.S.C. 6401 (a), the rule governing females in a situation similarto Ballard's, stated that

Each woman officer on the active list of the Navy, appointed under section 5590 of this title, who holds a permanentappointment in the grade of lieutenant . . . shall be honorably discharged on June 30 of the fiscal year in which--(1) she is not on a promotion list; and (2) she has completed 13 years of active commissioned service in the Navy .. .

Thus, it appeared that women enjoyed an unfair advantage over men, namely that a female officer had three more years to qualify for promotion before the Navy discharged her. This, Ballard charged, was an instance of unconstitutional discrimination in violation of the Fifth Amendment's Due Process Clause. The latter provides that no person shall "be deprived of life, liberty, or property, without due process of law." Cited less often than the due process provision in the Fourteenth Amendment, which carries with it an Equal ProtectionClause, the clause in the Fifth Amendment "prohibits the Federal Government from engaging in discrimination that is `so unjustifiable as to be violative of due process'," according to the Supreme Court's later review of Ballard's case.
The district court judge agreed with Ballard, and issued a temporary restraining order prohibiting the navy from discharging him. A three-judge district court panel was then convened to hear Ballard's claim, whereupon they issued apreliminary injunction against his discharge. Next the same panel reviewed the case to make a decision on its merits. As would the Supreme Court in its later review, the panel used Frontiero v. Richardson (1973) as its guide, and found that the mandatory-discharge rules under challenge were put in place solely for reasons of fiscal and administrative policy. In other words,there was no compelling reason to favor women over men in the rules; therefore the court held that 6382 was unconstitutional, and that 6401 discriminatedin favor of women without providing sufficient justification for doing so. The court then enjoined the U.S. Navy from discharging Ballard, and the navy appealed in the name James Schlesinger, Defense Secretary under the administration of President Gerald R. Ford. As is often true when a case reaches the nation's highest court, there were well-known personalities involved on both sides. Solicitor General Robert Bork, whose nomination to the Supreme Court would be rejected by Congress following a bitter ideological battle more than a decade later, filed a brief on behalf of the appellants. Noted attorney Charles R. Khoury argued for the appellee, and with him on the brief was Morris S.Dees, Jr., founder of the Southern Poverty Law Center in Montgomery, Alabama,and a famous champion of civil-rights cases.
Frontiero and Reed Offer a Guide--And a Contrast
In its review of the case before it, the Court examined the Navy's rationalebehind the differing rules governing men in 6382 and women in 6401. At the root of the system controlling rules of promotion and attrition, explained Justice Stewart for the majority, was the need to limit the number of officers. The higher the pay grade, the greater the limitations. Under those general guidelines, the Navy had in place a variety of systems for selection and promotion. One system, for instance, governed promotion of male line officers--thatis, officers with command over a specific body of troops; another system wasin place for most male and female staff officers--i.e., officers who lack a command, but rather serve on the staff of a higher-ranking officer. A line-officer position tends to offer better prospects for promotion that a staff position. Underlying all of the Navy's rules of promotion, again, was the principle of limiting the number of officers at higher grades: "Because the Navy hasa pyramidal organizational structure," Justice Stewart wrote, "fewer officers are needed at each high rank than are needed in the rank below. In the absence of some mandatory attrition of naval officers, the result would be stagnation of promotion of younger officers and disincentive to naval service." Hence the application of a philosophy informally called "up and out": simply put, an officer should either move up, or move out of the way so that someone else could move up.
But these rules, logical as they may have seemed, failed to explain the differing rationale for promoting women. This Stewart next addressed by reviewingtwo related cases, Frontiero v. Richardson and Reed v. Reed (1971). Frontiero addressed "the right of a female member of the uniformed services to claim her spouse as a `dependent' for the purposes of obtainingincreased quarters allowances and medical and dental benefits . . . on an equal footing with male members." The governing statutes held that a male member of the armed forces could automatically claim his wife as a dependent, whereas a female in the military could only claim her husband as a dependent if she could show that she provided more than one-half of his support. "The challenged classification," wrote Stewart, "was based exclusively on gender, and the Government conceded that the different treatment of men and women servicemembers was based solely upon considerations of administrative convenience."Accordingly the Court struck down the statute with the words:

anystatutory scheme which draws a sharp line between the sexes, solely for thepurpose of achieving administrative convenience, necessarily commands `dissimilar treatment for men and women who are . . . similarly situated' . . . We therefore conclude that . . . the challenged statutes violate the Due ProcessClause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.

The phrase "dissimilar treatment for men and women who are . . . similarly situated" came from an earlier case, Reed. In that instance, the statutein question was an Idaho probate code provision which gave a "mandatory" preference for men over women to serve as the administrator of a deceased person's estate. The Court judged that the Idaho statute, which allowed no consideration of the different parties' relative qualifications, was in place simply"to reduce probate expenses by eliminating contests over the relative qualifications of men and women otherwise similarly situated." The Court found thatlaw in violation of the Equal Protection Clause in the Fourteenth Amendment.
But what was at issue in Schlesinger was not equal protection or due process under the Fourteenth Amendment; rather, it was a question of due process as guaranteed in the Fifth. Also, in both of the earlier cases, "the challenged clarifications based on sex were premised on overbroad generalizationsthat could not be tolerated under the Constitution." The code challenged by Schlesinger, on the other hand, was based not on "archaic and overbroadgeneralizations, but, instead, [on] the demonstrable fact that male and female line officers in the navy are not similarly situated with respect to opportunities for professional service." Specifically, another section of Title 10, 6015, forbade women from assignment "to duty in aircraft that are engaged in combat missions [or] to duty on vessels of the Navy other than hospital ships and transports." Generally in the military, combat service is one of the surest guarantees of promotion, and since women by definition could not garnersuch service, Congress had retained the 13-year clause for them as a means of ensuring "fair and equitable career advancement programs." And Lt. Ballard,as the Court noted, had "not challenged the current restrictions on women'sofficers' participation in combat and in most sea duty."
The rational basis for the different rules, the Court observed, was further reinforced by the fact that in situations where males and females were placedon an equal footing, no distinction was made between them with regard to promotion and attrition. Hence certain women staff officers in the medical, dental, judge advocate general's (legal), and medical service corps were subjectedto the same tenure rules as men; similarly men in the nurse corps--by definition a non-combatant entity-- enjoyed the same 13-year provision as their female counterparts. In conclusion, the Court reinforced the constitutional separation of powers: "The responsibility for determining how best our Armed Forces shall attend to that business [war] rests with Congress . . . and with thePresident." Because it could not be demonstrated that Congress had violatedthe Due Process Clause of the Fifth Amendment, the Court reversed the lower court's ruling.
A Different Reading of the Legislative History
Justice Brennan presented a dissenting opinion in which he was joined by Justices Douglas and Marshall and, in part, by Justice White. Observing that in his view "a legal classification . . . premised solely upon gender must be subject to close judicial scrutiny," Brennan launched into a close reading of the legislative history behind the various statutes, which had resulted in thediffering periods of tenure. In so doing, he suggested at the outset, the result might be quite different from that which the Court had obtained in its majority ruling. "I find nothing in the statutory scheme or the legislative history," he wrote,

to support the supposition that Congress intended . . . to compensate women for other forms of disadvantage visited upon themby the Navy. Thus, the gender-based classification of which appellee complains is not related, rationally or otherwise, to any legitimate legislative purpose fairly to be inferred from the statutory scheme or its history, and cannot be sustained.

In his review of the statute's history, Brennan went back almost three decades, to the enacting of the Women's Armed Services Integration Act, to which 6401 was related. Due to differences in procedure for promotion between males and females, the provisions for mandatory separation of women officers had been made a function of time served, not of opportunities for promotion. The purpose of the differing separation provisions, Brennan wrote, sprang from a desire on the part of Congress to equate the tenure in years for female lieutenants with that of the average male lieutenant prior to mandatory separation. When Congress reviewed aspects of its rules regarding promotion and career opportunities for women in 1967, it did so "as the Court notes, to provide womenwith `fair and equitable career advancement programs.'" But "contrary to theCourt's assumption, Congress determined to achieve this goal, not by providing special compensatory treatment for women, but by removing most of the restrictions upon them and then subjecting them to the same provisions generallygoverning men."
Brennan went on to illustrate this assertion by citing various provisions inCongress's 1967 act, and concluded that "to infer a determination purposely to perpetuate a longer retention period for women line officers is, therefore,entirely to misconceive Congress' perception of the problem and of the proper solution." While he professed to applaud the aim of redressing gender imbalance, Brennan indicated, he did not believe it proper to view the tenure provisions as serving this purpose. Therefore he voted to affirm the lower court's ruling.
Impact
From the standpoint of women's rights, it appeared on one level that Schlesinger gave women what amounted to special privileges, at least in the Court's treatment of the tenure statutes, while still demanding and receiving equal rights. But this was only on one level: on another, the case simply served to highlight the fact that differing promotional opportunities between menand women were virtually a fact of life. Likewise the case was at odds withdecisions such as Stanton v. Stanton (1975) and Craig v. Boren(1976), which sought to establish complete parity between males and females with regard to the age of majority. As for its raising of the issue of women in combat, the case helped pave the way for Rostker v. Goldberg (1981),in which the Court rejected inclusion of women in the draft by a vote of 6-3.
Related Cases

• Reed v. Reed, 404 U.S. 71 (1971).
  
• Frontiero v. Richardson, 411 U.S. 677 (1973).
  
• Kahn v. Shevin, 416 U.S. 351 (1974).
  
• Weinberger v. Weisenfeld, 420 U.S. 636 (1975).
  
• Craig v. Boren, 429 U.S. 190 (1976).
  
• Rostker v. Goldberg, 448 U.S. 1306 (1980).