LOCATION:Plumbers and Steamfitters Local Union No. 100
DOCKET NO.: 73-776
DECIDED BY: Burger Court (1972-1975)
CITATION: 419 US 498 (1975)
ARGUED: Oct 15, 1974
DECIDED: Jan 15, 1975
Charles R. Khoury, Jr. – for appellee
Harriet S. Shapiro –
Media for Schlesinger v. Ballard
Audio Transcription for Opinion Announcement – January 15, 1975 in Schlesinger v. Ballard
Warren E. Burger:
The judgment and opinion of the Court in No. 73-776, Schlesinger against Ballard will be announced by Mr. Justice Stewart.
This case is here on direct appeal from the United States District Court for the Southern District of California.
The appellee, Robert C. Ballard is a lieutenant in the United States Navy.
After more than nine years of active service as a commissioned officer, the failed for a second time to be selected for promotion to the grade of lieutenant commander and he was therefore subject to mandatory discharge under the governing federal statute.
He brought suit in a federal court claiming that if he had been a woman officer, he would have been subject to a different separation statute under which he would have been entitled to 13 years of commission service before a mandatory discharge for want of promotion.
He claimed that the application of the governing statute to him, when compared with the treatment of women officers subject to the other statute applicable to them, was an unconstitutional discrimination based on sex in violation of the Due Process Clause of the Fifth Amendment of the United States constitution.
The three-judge District Court agreed with his contentions and enjoined his discharge from the Navy before the expiration of 13 years of commissioned service.
The government thereupon brought this appeal from that judgment.
This Court has recognized that it is the primary business of armies and navies to fight or to be ready to fight should the occasion arise and that’s a direct quotation from the case of Toth against Quarles.
Under the constitution, the responsibility for determining how best our Armed Forces shall attend to that business rests with the Congress and with the President.
For the reasons set out in detail in the written opinion filed today with the clerk, we hold that in exercising its broad constitutional power, Congress has not violated the Due Process Clause of the Fifth Amendment in this case.
Accordingly, the judgment is reversed.
Mr. Justice Brennan has filed a dissenting opinion in which Mr. Justice Douglas and Mr. Justice Marshall have joined.
Mr. Justice White has filed a separate dissenting statement expressing his substantial agreement with Mr. Justice Brennan’s dissenting opinion.
Warren E. Burger:
Thank you Mr. Justice Stewart.