Schlesinger v. Ballard

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 the differing 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 them by 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 women with `fair and equitable career advancement programs.'" But "contrary to the Court'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 generally governing men."

Brennan went on to illustrate this assertion by citing various provisions in Congress'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.