Schlesinger v. Ballard

In its review of the case before it, the Court examined the Navy's rationale behind 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--that is, officers with command over a specific body of troops; another system was in 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 has a 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 reviewing two 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 obtaining increased 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 service members was based solely upon considerations of administrative convenience." Accordingly the Court struck down the statute with the words:

any statutory scheme which draws a sharp line between the sexes, solely for the purpose 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 Process Clause 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 statute in 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 that law 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 generalizations that could not be tolerated under the Constitution." The code challenged by Schlesinger, on the other hand, was based not on "archaic and overbroad generalizations, 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 garner such 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's officers' 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 placed on 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 subjected to 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 the President." Because it could not be demonstrated that Congress had violated the Due Process Clause of the Fifth Amendment, the Court reversed the lower court's ruling.