Schlesinger v. Ballard

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 he is 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 20 years 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 similar to Ballard's, stated that

Each woman officer on the active list of the Navy, appointed under section 5590 of this title, who holds a permanent appointment 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 Protection Clause, 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 a preliminary 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 discriminated in 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.