MR. JUSTICE STEWART delivered the opinion of the Court.
Appellee Robert C. Ballard is a lieutenant in the United States Navy. After more than nine years of active service as a commissioned officer, he failed, for a second time, to be selected for promotion to the grade of lieutenant commander, and was therefore subject to mandatory discharge under 10 U. S. C. § 6382 (a).
The District Judge issued a temporary restraining order prohibiting Ballard's discharge. Subsequently, a three-judge District Court was convened to hear the claim pursuant to 28 U. S. C. §§ 2282, 2284. After hearings upon motions by the Government defendants, that court issued a preliminary injunction against Ballard's discharge.
At the base of the system governing the promotion and attrition of male line officers in the Navy is a congressional designation of the authorized number of the Navy's enlisted personnel, 10 U. S. C. § 5401, and a correlative limitation upon the number of active line officers as a percentage of that figure. § 5403.
The Secretary of the Navy is required periodically to convene selection boards to consider and recommend for promotion male line officers in each of the separate ranks, § 5701, and must provide the boards so convened with the number of male line officers that may be recommended
Wholly separate promotion lines are established for the various categories of officers. Thus, in addition to the selection boards that are convened to review the promotion of male line officers, different selection boards are convened to recommend for promotion staff corps officers (except for women officers appointed under § 5590). § 5702, male officers in the Marine Corps, § 5703, women line officers, § 5704 (a), and women staff officers who are appointed under § 5590. § 5704 (b). The convening of these separate selection boards permits naval officers within each category to be considered for promotion in comparison with other officers with similar opportunities and experience.
Because the Navy has a pyramidal organizational structure, fewer officers are needed at each higher 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. If the officers who failed to be promoted remained in the service, the promotion of younger officers through the ranks would be retarded. Accordingly, a basic "up or out" philosophy was developed to maintain effective leadership by heightening competition for the higher ranks while providing junior
The phrase "failed of selection for promotion" in § 6382 (a) is a statutory term of art. It does not embrace all eligible officers who have been considered and not selected for promotion. Before an officer is considered to have failed of selection for the first time, he must have been placed within a "promotion zone" established by the Secretary of the Navy. The Secretary each year establishes "promotion zones" of officers who will either be selected for promotion to the next higher grade or who will be considered to have failed of selection for promotion for the first time. See §§ 5764, 5776. The number of officers in the zones, established for each grade, is set at a level to ensure a flow of promotions consistent with the appropriate terms of service in each grade, see § 5768, and to provide opportunity for promotion of others in succeeding years. The number
Section 6401 is the mandatory-attrition provision that applies to women officers appointed under § 5590, including all women line officers and most women officers in the Staff Corps.
It is against this background that we must decide whether, agreeably to the Due Process Clause of the
In Frontiero the Court was concerned with "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 under 37 U. S. C. §§ 401, 403, and 10 U. S. C. §§ 1072, 1076, on an equal footing with male members." 411 U. S., at 678. Under the governing statutes, a serviceman could automatically claim his spouse as a "dependent," but a servicewoman's male spouse was not considered to be a "dependent" unless he was shown in fact to be dependent upon his wife for more than one-half of his support. The challenged classification 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. The Court found this disparity of treatment constitutionally invalid. In the words of the plurality opinion:
The case of Reed v. Reed, supra, involved quite similar considerations. In that case the Court considered the constitutionality of an Idaho probate code provision that, in establishing who would administer a decedent's estate, gave a "mandatory" preference to men over women when they were in the same degree of relationship to the decedent. The Idaho law permitted no consideration of the individual qualifications of particular men or women as potential administrators, but simply preferred males in order to reduce probate expenses by eliminating contests over the relative qualifications of men and women otherwise similarly situated. The Court held that "[b]y providing dissimilar treatment for men and women who are thus similarly situated, the challenged section violates the Equal Protection Clause." 404 U. S., at 77.
In both Reed and Frontiero the challenged classifications based on sex were premised on overbroad generalizations that could not be tolerated under the Constitution. In Reed, the assumption underlying the Idaho statute was that men would generally be better estate administrators than women. In Frontiero, the assumption underlying the Federal Armed Services benefit statutes was that female spouses of servicemen would normally be dependent upon their husbands, while male spouses of servicewomen would not.
The judgment is reversed.
The Court concludes that the statutory scheme which results in different periods of tenure for male and female line lieutenants of the Navy does not contravene the Due Process Clause of the Fifth Amendment because "Congress may . . . quite rationally have believed that women line officers had less opportunity for promotion than did their male counterparts, and that a longer period of tenure for women officers would, therefore, be consistent with the goal to provide women officers with `fair and equitable career advancement programs.' " Ante, at 508. I believe, however, that a legislative classification that is premised solely upon gender must be subjected to close judicial scrutiny. Frontiero v. Richardson, 411 U.S. 677 (1973); Kahn v. Shevin, 416 U.S. 351 (1974) (BRENNAN, J., dissenting). Such suspect classifications can be sustained only if the Government demonstrates that the classification serves compelling interests that cannot be otherwise achieved. Here, the Government as much as concedes that the gender-based distinctions in separation provisions for Navy officers fulfill no compelling purpose.
Further, the Court goes far to conjure up a legislative purpose which may have underlain the gender-based distinction here attacked. I find nothing in the statutory scheme or the legislative history to support the supposition that Congress intended, by assuring women but not men line lieutenants in the Navy a 13-year tenure, to compensate women for other forms of disadvantage visited upon them by the Navy.
As the Court recounts, § 6401 was enacted as part of the Women's Armed Services Integration Act of 1948, 62 Stat. 368. This Act, while providing for the first time a permanent role for women in the military, severely limited their career opportunities. Among other things, it provided that women in the Navy could not be permanently promoted above the rank of commander, and it set the number of women lieutenants, lieutenant commanders, and commanders at a small percentage of the number of regular women officers on active duty. Perhaps because these limitations upon promotion opportunities made it impractical to guarantee women line officers promotion at any uniform rate, the promotion zone system provided for men by the Officer Personnel Act of 1947, 61 Stat. 860, was not applied to them. And, as explained by the Court, without a promotion zone system, the basis for determining involuntary separation under § 6382 (a), whether an officer has twice "failed of selection for promotion," has no meaning.
However, for reasons not entirely clear upon the record in this case, the promotion zone system for men did not, as administered by the Navy, result in the normal 13-year tenure for men before involuntary separation contemplated by §§ 5764 and 5768.
In 1967, Congress decided to eliminate many of the provisions restricting career opportunities for women. In doing so it wished, as the Court notes, to provide women with "fair and equitable career advancement programs." H. R. Rep. No. 216, supra, at 5. However, 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. Id., at 3; S. Rep. No. 676, supra, at 2.
First, the entire structure of the 1967 Act is directed toward assimilating as much as possible the promotion structure for women line officers to that of men. The Act, for example, provided for a promotion zone system for women line officers in the Navy, 10 U. S. C. § 5764 (d), and applied the "failure of selection" designation to
Second, the legislative history of the 1967 Act makes quite clear that Congress' purpose in retaining the 13-year tenure for women line lieutenants was not to take account of the limited opportunities available to women in the Navy. Congress explicitly recognized that
Moreover, the legislative history is replete with indications of a decision not to give women any special advantage. "The purpose of the legislation has been limited to the removal of arbitrary restrictions. No effort has been made to provide special assurances to women officers, and none is recommended." Letter from General Counsel, Department of Defense, in S. Rep. No. 676, supra, at 5; H. R. Rep. No. 216, supra, at 9. "The purpose of the bill is to create parity only in respect to recognizing merit and performance." Id., at 7. See S. Rep. No. 676, supra, at 3.
Given this analysis of the relationship between § 6382 and § 6401, the difference in tenure which resulted in fact from the operation of these sections manifestly serves no overriding or compelling governmental interest. Indeed, appellants concede as much in discussing proposed H. R. 12405 (93d Cong., 2d Sess.), §§ 2 (5) and 4 (18), to which the Court refers, ante, at 510 n. 13: "The Department of Defense considers that the separate rule for women, while serving a legitimate governmental purpose. . . is on balance no longer needed as a matter of military personnel policy." Brief for Appellants 18. (Emphasis supplied.) Since the executive department most intimately concerned with the promotion policy in
Further, while I believe that "providing special benefits for a needy segment of society long the victim of purposeful discrimination and neglect" can serve "the compelling. . . interest of achieving equality for such groups," Kahn v. Shevin, 416 U. S., at 358-359 (BRENNAN, J., dissenting), I could not sustain this statutory scheme even if I accepted the Court's supposition that such a purpose lay behind this classification. Contrary to the Court's intimation, ante, at 508, women do not compete directly with men for promotion in the Navy. Rather, selection boards for women are separately convened, 10 U. S. C. § 5704, the number of women officers to be selected for promotion is separately determined, 10 U. S. C. § 5760, promotion zones for women are separately designated, 10 U. S. C. § 5764, and women's fitness for promotion is judged as compared to other women, 10 U. S. C. § 5707. In this situation, it is hard to see how women are disadvantaged in their opportunity for promotion by the fact that their duties in the Navy are limited, or how increasing
The Court suggests no purpose other than compensation for disadvantages of women which might justify this gender-based classification. I agree that the "up or out" philosophy "was developed to maintain effective leadership by heightening competition for the higher ranks while providing junior officers with incentive and opportunity for promotion." Ante, at 502-503. But the purpose behind the "up or out" philosophy applies as well to women as to men. The issue here is not whether the treatment accorded either women or men under the statutory scheme would, if applied evenhandedly to both sexes, forward a legitimate or compelling state interest, but whether the differences in the provisions applicable to men and women can be justified by a governmental purpose.
For this same reason, the invocation of the deference due Congress in determining how best to assure the readiness
Thus, the validity of the statutory scheme must stand or fall upon the Court's asserted compensatory goal. Yet, as the analysis in Part I, supra, demonstrates, this purpose was not in fact behind either the original enactment of § 6401 or its retention in 1967. While we have in the past exercised our imaginations to conceive of possible rational justifications for statutory classifications, see McGowan v. Maryland, 366 U.S. 420, 425-428 (1961), we have recently declined to manufacture justifications in order to save an apparently invalid statutory classification. Cf. James v. Strange, 407 U.S. 128 (1972); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972). Moreover, we have analyzed asserted governmental interests to determine whether they were in fact the legislative purpose of a statutory classification, Eisenstadt v. Baird, 405 U.S. 438, 442-443 (1972), and have limited our inquiry to the legislature's stated purposes when these purposes are clearly set out in the statute or its legislative history. Johnson v. Robison, 415 U.S. 361, 376 (1974). Never, to my knowledge, have we endeavored to sustain a statute upon a supposition about the legislature's purpose in enacting it when the asserted justification can be shown conclusively not to have underlain the classification in any way.
MR. JUSTICE WHITE, dissenting.
Agreeing for the most part with MR. JUSTICE BRENNAN'S dissenting opinion, I also dissent from the judgment of the Court.
"(a) Each officer on the active list of the Navy serving in the grade of lieutenant, except an officer in the Nurse Corps, and each officer on the active list of the Marine Corps serving in the grade of captain 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. However, if he so requests, he may be honorably discharged at any time during that fiscal year.
"(d) This section does not apply to women officers appointed under section 5590 of this title or to officers designated for limited duty."
Ballard's scheduled discharge carried with it an entitlement to a "lump-sum" severance payment of approximately $15,000, 10 U. S. C. § 6382 (c), but would have terminated Ballard's total service time (including seven years of enlisted service) short of the 20 years of service necessary for substantially greater retirement benefits.
"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 and each woman officer on the active list of the Marine Corps who holds a permanent appointment in the grade of captain 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 or in the Marine Corps.
"However, if she so requests, she may be honorably discharged at any time during that fiscal year."
"A particularly severe problem of promotion stagnation exists among WAVE officers in the Navy. The present grade limitations on promotion of WAVE officers to the grades of commander-lieutenant commander have so reduced the vacancies that the Navy will be forced to discharge most regular WAVE lieutenants when they reach their 13th year of service if relief is not provided.
"Present law (sec. 6401, title 10, United States Code) provides that women officers on the active list of the Navy in the grade of lieutenant must be discharged on June 30 of the fiscal year in which they complete 13 years of active commissioned service if not on a promotion list that year. The Navy estimates that without legislative relief, the attrition among women line lieutenants will average 50 percent or more over the next 5 years. The Navy considers such heavy attrition unacceptable." H. R. Rep. No. 216, supra, at 6.
It is thus clear that Congress in 1967 intentionally retained the 13-year tenure provision of § 6401, and did so with specific knowledge that it gave women line officers a longer tenure than their male counterparts.
"(a) Except as they may apply to women officers of the Regular Navy . . . appointed under section 5590 of title 10, . . . the following sections of title 10 cease to operate whenever the number of male officers serving on active duty in the grade of ensign or above in the line of the Navy does not exceed the number of male officers holding permanent appointments in the grade of ensign or above on the active list in the line of the Regular Navy: Sections . . . 5764-5770 . . . ." 70A Stat. 639.
Also, 10 U. S. C. § 5785 provides that:
"(b) During a war or national emergency, the President may suspend any provision of the preceding sections of this chapter relating to officers of the Navy . . . , other than women officers appointed under section 5590 of this title."
Because these sections do not apply to women covered by § 6401, any suspensions could have the effect of shortening normal tenure for men without affecting the tenure of women. See ante, at 505 n. 11.
(1) The amendment of 10 U. S. C. § 5771 so that women officers on a promotion list, like men, can be promoted as soon as vacancies occur. This was done to prevent a delay of six to eight months in promotion which caused "women officers to fall behind their male contemporaries." H. R. Rep. No. 216, supra, at 15; S. Rep. No. 676, 90th Cong., 1st Sess., 10.
(2) The amendment of 10 U. S. C. §§ 5704, 5711, and related sections so that all women line officers on active duty, including Reserve officers, will, like all men line officers on active duty, be considered for promotion by the same selection boards and in the same way.
Aside from § 6401, some distinctions between the promotion systems for male and female line officers did survive the 1967 Act. See, e. g., 10 U. S. C. § 5707 (difference between men and women on standard for selection below lieutenant commander). It is significant, however, that as a result of the 1967 amendments, the tenure in years for unrestricted men and women line officers is the same for all grades in which involuntary separation or retirement is linked for both to years served. Compare 10 U. S. C. §§ 6376 and 6379 with § 6398; § 6380 with § 6400. However, in most instances men cannot be involuntarily retired until they have twice failed of selection and reached the required tenure in years, while for women failure to be promoted within the requisite number of years is sufficient.