author: Mb. Justice Brennan Mr. Justice Rehtstquist, Mb. Justice Powell,

text:
    COUSINS et al. v. WIGODA et al.
    No. 73-1106.
    Argued November 11, 1974—
    Decided January 15, 1975

      Brennan, J., delivered the opinion of the Court, in which Douglas, White, Marshall, and Blackmun, JJ., joined. Rehnquist, J., filed an opinion concurring in the result, in which Burger, C. J., and Stewart, J., joined, post, p. 491. Powell, J., filed an opinion concurring in part and dissenting in part, post, p. 496.

      Wayne W. Whalen argued the cause for petitioners. With him on the briefs were John R. Schmidt, Douglas A. Poe, Robert L. Tucker, and John C. Tucker.

      Jerome H. Torshen argued the cause for respondents. With him on the brief were Lawrence H. Eiger, Earl L. Neal, and GayleF. Haglund

         Joseph L. Bauh, Jr., John Süard, and Elliott Lichtman filed a brief for Americans for Democratic Action et al. as amici curiae urging reversal.

   Mb. Justice Brennan

delivered the opinion of the Court.

At the March 1972 Illinois primary election, Chicago’s Democratic voters elected the 59 respondents (Wigoda delegates) as delegates to the 1972 Democratic National Convention to be held in July 1972 in Miami, Fla. Some of the 59 petitioners (Cousins delegates) challenged the seating of the Wigoda delegates before the Credentials Committee of the National Democratic Party on the ground, among others, that the slate-making procedures under which the Wigoda delegates were selected violated Party guidelines incorporated in the Call of the Convention. On June 30, 1972, the Credentials Committee sustained the Findings and Report of a Hearing Officer that the Wigoda delegates had been chosen in violation of the guidelines, and also adopted the Hearing Officer’s recommendation that the Wigoda delegates be unseated and the Cousins delegates (who had been chosen in June at private caucuses in Chicago) be seated in their stead.

On July 8, 1972, two days before the Convention opened, the Wigoda delegates obtained from the Circuit Court of Cook County, Ill., an injunction that enjoined each of the 59 petitioners “from acting or purporting to act as a delegate to the Democratic National Convention . . . [and] from performing the functions of delegates . . . [and] from receiving or accepting any credentials, badges or other indicia of delegate status . ...” Nevertheless when the Convention on July 10 adopted the Credentials Committee’s recommendation and seated the Cousins delegates, they took their seats and participated fully as delegates throughout the Convention. In consequence, proceedings to adjudge petitioners in criminal contempt of the July 8 injunction are pending in the Circuit Court awaiting this Court’s decision in this case.

The Illinois Appellate Court affirmed the injunction, 14 Ill. App. 3d 460, 302 N. E. 2d 614 (1973), and the Supreme Court of Illinois, without opinion, on November 29, 1973, denied leave to appeal. The Appellate Court held that “[t]he right to sit as a delegate representing Illinois at the national nominating convention is governed exclusively by the Illinois Election Code,” id.., at 472, 302 N. E. 2d, at 626, and rejected the Cousins delegates’ contention that the injunction attempting to enforce that Code, by preventing them from participating as delegates at the Convention, violated their right, and the right of the National Democratic Party, to freedom of political activity and association assured them under the First and Fourteenth Amendments. The Appellate Court stated:

“[T]he purposes and guidelines for reform adopted by the Democratic National Party in its Call for the 1972 Democratic National Convention ... in no way take precedence in the State of Illinois over the Illinois Election Code (Ill. Rev. Stat. 1971, ch. 46, § 7-1 et seq.). The opening section of Article 7 of the Election Code, which deals with the making of nominations by political parties (§ 7-1), is most clear when in discussing the selection of delegates to National nominating conventions, it states:
. [Delegates and alternate delegates to National nominating conventions by all political parties . . . shall be made in the manner provided in this Article 7, and not otherwise.’ ” Id., at 471, 302 N. E. 2d, at 625.
“[T]he law of the state is supreme and party rules to the contrary are of no effect....” Id., at 475, 302 N. E. 2d, at 627.
“The interest of the state in protecting the effective right to participate in primaries is superior to whatever other interests the party itself might wish to protect. . . .” Id., at 477, 302 N. E. 2d, at 629.
“Since [respondents] were admittedly elected to the position of delegates to the 1972 Democratic National Convention by operation of the Election Code, an Illinois statute, this court finds the trial court’s injunctions did not abrogate [petitioners’] fundamental constitutional rights of free political association. ..Id., at 479, 302 N. E. 2d, at 631.

We granted certiorari to decide the important question presented whether the Appellate Court was correct in according primacy to state law over the National Political Party’s rules in the determination of the qualifications and eligibility of delegates to the Party’s National Convention. 415 U. S. 956 (1974) , We reverse.

I

There is a threshold question to be decided before we discuss the merits of the constitutional issue. During June and July 1972 the District Court for the District of Columbia and the Court of Appeals for the District ofi Columbia Circuit twice considered an action brought by one of the Wigoda delegates, Thomas E. Keane, against the National Democratic Party. That action challenged the constitutionality of the Party guidelines allegedly violated in the selection of the Wigoda delegates. The Cousins delegates intervened and the Party counterclaimed for an injunction enjoining the Wigoda delegates! from proceeding with the state-court action. The case was initially dismissed on appeal because the Credentials Committee had not yet decided the petitioners’ challenge, Keane v. National Democratic Party, No. 1010-72 (DC June 19, 1972); Keane v. National Democratic Party, No. 72-1562 (DC Cir. June 20, 1972). After the Credentials Committee announced its adoption of the Hearing Officer’s Findings and Report, the suit proceeded. The District Court sustained the constitutionality of Guideline C-6, see n. 1, supra, and dismissed Keane’s suit, while denying the counterclaim. The Court of Appeals, on July 5, affirmed the dismissal but granted the counterclaim directing the entry of an order enjoining the Wigoda delegates from proceeding with the Circuit Court suit. Brown v. O’Brien, 152 U. S. App. D. C. 157, 469 F. 2d 563. This Court, however, at a Special Term on July 7, stayed the judgment of the Court of Appeals, 409 U. S. 1. On October 10, 1972, we granted Keane’s petition for certiorari, vacated the judgment of the Court of Appeals, and remanded for a determination of mootness. 409 U. S. 816. The Court of Appeals, on February 16, 1973, held the case moot insofar as it concerned seating of delegates at the July Convention, found no basis for relief as to any other matter, and entered a judgment affirming the District Court’s order of July 3 dismissing Keane’s suit, 155 U. S. App. D. C. 18, 475 F. 2d 1287.

Based upon these events, petitioners argue that the Illinois Circuit Court was without jurisdiction to enter its July 8 injunction notwithstanding this Court’s July 7 stay of the Court of Appeals’ judgment. The argument relies upon the reference in the Court’s per curiam opinion supporting the stay to “the large public interest in allowing the political processes to function free from judicial supervision,” 409 U. S., at 5, which, petitioners argue, “established the right, in the particular circumstances of this case, of the 1972 Democratic National Convention to decide the Chicago credentials contest.” Brief for Petitioners 20. The argument is without merit. The per .curiam did not decide the question before us in this case. The stay order, in terms, unambiguously suspended the operative effect of the Court of Appeals’ judgment without qualification and in its entirety, and nothing in the quoted excerpt from the per curiam opinion in any wise qualified that effect. We agree with the Illinois Appellate Court, therefore, that the stay order “completely froze the order of the Court of Appeals, including the injunction order directed to the Circuit Court of Illinois, thereby allowing the Circuit Court to proceed.” 14 Ill. App. 3d, at 468,302 N. E. 2d, at 622-623.

Petitioners argue further that in any event the stay order “did not alter the binding collateral estoppel and res judicata effect of that [Court of Appeals] judgment so as to permit collateral attack in the Illinois state courts.” Brief for Petitioners 28. We need not address the merits of that argument. The Illinois Appellate Court rejected it on the ground that the res judicata defense had not been pleaded and proved in the Circuit Court as required by Illinois law established in Svalina v. Saravana, 341 Ill. 236, 173 N. E. 281 (1930). 14 Ill. App. 3d, at 469, 302 N. E. 2d, at 623. We have no basis for disagreement with the holding of the Appellate Court “that the [petitioners] neither formally pleaded nor attempted to prove their claim of res judicata based on the decision of the Court of Appeals for the District of Columbia Circuit.” Ibid. This constitutes an adequate state ground that forecloses any jurisdiction that we might possess to review the merits of the res judicata defense. See, e. g., Louisville & N. R. Co. v. Woodford, 234 U. S. 46 (1914). Accordingly, we turn to consideration of the merits of the constitutional question.

II

The National Democratic Party and its adherents enjoy a constitutionally protected right of political association. “There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of 'orderly group activity’ protected by the First and Fourteenth Amendments. . . . The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom.” Kusper v. Pontikes, 414 U. S. 61, 56-57 (1973). “And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States.” Williams v. Rhodes, 393 U. S. 23, 30-31 (1968). Moreover, “[a]ny interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957); see NAACP v. Button, 371 U. S. 415, 431 (1963).

Petitioners rely upon these principles and contend that, since the July 8 Circuit Court injunction was fashioned to effectuate state law by barring them from serving as delegates at their Party’s National Convention, the injunction constituted an unconstitutional “significant interference” with protected rights of political association. Bates v. Little Rock, 361 U. S. 516, 523 (1960); see also Kusper v. Pontikes, supra, at 58.

The Illinois Appellate Court conceded that petitioners and the Party enjoyed “fundamental constitutional rights of free political association.” 14 Ill. App. 3d, at 470, 302 N. F. 2d, at 624. The Appellate Court justified the injunction, however, on the ground that the “interest of the state in protecting the effective right to participate in primaries is superior to whatever other interests the party itself might wish to protect.” Id., at 477, 302 N. E. 2d, at 629. In other words, the Appellate Court identified as the State’s legitimate interest the protection of votes cast at the primary from the impairment that would result from stripping the respondents of their elected-delegate status.

We observe at the outset that petitioners’ compliance with the injunction would not have assured effectuation of the state objective to seat respondents at the Convention. The Convention was under no obligation to seat the respondents but was free, as respondents concede, to leave the Chicago seats vacant and thus defeat the objective.

We proceed, however, to considering whether the asserted state interest justifies the injunction. Even though legitimate, the “ 'subordinating interest of the State must be compelling’. . to justify the injunction’s abridgment of the exercise by petitioners and the National Democratic Party of their constitutionally protected rights of association. NAACP v. Alabama, 357 U. S. 449, 463 (1958).

Respondents argue that Illinois had a compelling interest in protecting the integrity of its electoral processes and the right of its citizens under the State and Federal Constitutions to effective suffrage. They rely on the numerous statements of this Court that the right to vote is a “fundamental political right, because preservative of all rights.” Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886); Reynolds v. Sims, 377 U. S. 533, 562 (1964) ; Williams v. Rhodes, 393 U. S., at 31; Kramer v. Union School District, 395 U. S. 621, 626 (1969); Dunn v. Blumstein, 405 U. S. 330, 336 (1972). But respondents overlook the significant fact that the suffrage was exercised at the primary election to elect delegates to a National Party Convention. Consideration of the special function of delegates to such a Convention militates persuasively against the conclusion that the asserted interest constitutes a compelling state interest. Delegates perform a task of supreme importance to every citizen of the Nation regardless of their State of residence. The vital business of the Convention is the nomination of the Party’s candidates for the offices of President and Vice President of the United States. To that end, the state political parties are “affiliated with a national party through acceptance of the national call to send state delegates to the national convention.” Ray v. Blair, 343 U. S. 214, 225 (1952). The States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates. If the qualifications and eligibility of delegates, to National Political Party Conventions were left to state law “each of the fifty states could establish the qualifications of its delegates to the various party conventions without regard to party policy, an obviously intolerable-result.” Wigoda v. Cousins, 342 F. Supp. 82, 86 (ND Ill.1972). Such a regime could seriously undercut or indeed, destroy the effectiveness of the National Party Convention as a concerted enterprise engaged in the vital process of choosing Presidential and Vice-Presidential candidates— a process which usually involves coalitions cutting across state lines. The Convention serves the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State. The paramount necessity for effective performance of the Convention’s task is underscored by Mr. Justice Pitney’s admonition “that the likelihood of a candidate succeeding in an election without a party nomination is practically negligible. . . . As a practical matter, the ultimate choice of the mass of voters is predetermined when the nominations have been made.” Newberry v. United States, 256 U. S. 232, 286 (1921) (dissenting opinion).

Thus, Illinois’ interest in protecting the integrity of its electoral process cannot be deemed compelling in the context of the selection of delegates to the National Party Convention. Whatever the case of actions presenting claims that the Party’s delegate selection procedures are not exercised within the confines of the Constitution— and no such claims are made here — this is a case where “the convention itself [was] the proper forum for determining intra-party disputes as to which delegates [should] be seated.” O’Brien v. Brown, 409 U. S. 1, 4 (1972).

Reversed.

Mr. Justice Rehtstquist,

with whom The Chief Justice and Mr. Justice Stewart join,

concurring in the result.

We agree with the Court that the members of political parties enjoy a constitutionally protected right of freedom of association secured by the First and Fourteenth Amendments to the United States Constitution. The right of members of a political party to gather in a national political convention in order to formulate proposed programs and nominate candidates for political office is at the very heart of the freedom of assembly and association which has been established in earlier cases decided by the Court. NAACP v. Alabama, 357 U. S. 449 (1958); Bates v. Little Rock, 361 U. S. 516, 523 (1960); Healy v. James, 408 U. S. 169 (1972).

We also agree that the interest of the State of Illinois in protecting its electoral processes for primary delegate selection is not sufficient to authorize a flat prohibition against petitioners’ efforts to have the 1972 National Democratic Convention seat them as party delegates from Illinois. The operation of the injunction issued by ■ the Illinois Circuit Court in this case was as direct and severe an infringement of the right of association as can be conceived. Beside it, the sort of “subtle governmental interference” which was referred to in Bates v. Little Bock, supra, pales. We would by no means downplay the legitimacy of the interest of the State in assuring that delegates to the Party Convention chosen pursuant to its electoral processes, and presumably representing the view of the majority of the party’s electors in that State, are seated at the Convention. But since it is conceded that the National Convention, and not the State, had the ultimate authority to choose among contesting delegations, we do not believe the State’s interest is sufficient to support a total restriction on the petitioners’ right to assemble, associate with fellow members of a political party, and urge upon the Convention their claim to be seated as delegates.

While the Court arrives at substantially the same conclusion, in the process of doing so it seems to us to use unnecessarily broad language, to intimate views on questions on which it disclaims any intimation of views, and to turn virtually on its head the Court’s opinion in O’Brien v. Brown, 409 U. S. 1 (1972).

Footnote 4 of the Court’s opinion disclaims any intimation of views on the following questions: “(1) whether the decisions of a national political party in the area of delegate selection constitute state or governmental action .... (2) whether national political parties are subject to the principles of the reapportionment decisions, or other constitutional restraints, in their methods of delegate selection and allocation. ... (3) whether or to what extent national political parties and their nominating conventions are regulable by, or only by, Congress.” But immediately following the disclaimer, the Court proceeds to cite numerous opinions of courts of appeals and district courts, as well as law review commentaries, which to the unsophisticated mind might seem to portend an answer to each of these questions. Conspicuous by its absence in the footnote is any reference to this Court’s opinion in O’Brien v. Brown, supra, decided slightly more than two years ago, where we reviewed two cases from the United States Court of Appeals for the District of Columbia Circuit. That court in those cases had taken the view that action by the National Party did constitute “state action” for purposes of the Fourteenth Amendment, and proceeded to apply its interpretation of that Amendment to action of the Credentials Committee of the Democratic National Convention. We stayed the orders of the Court of Appeals in those cases, saying:

“It has been understood since our national political parties first came into being as voluntary associations of individuals that the convention itself is the proper forum for determining intra-party disputes as to which delegates shall be seated. Thus, these cases involve claims of the power of the federal judiciary to review actions heretofore thought to lie in the control of political parties. Highly important questions are presented concerning justiciability, whether the action of the Credentials Committee is state action and, if so, the reach of the Due Process Clause in this unique context. Vital rights of association guaranteed by the Constitution are also involved. While the. Court is unwilling to undertake final resolution of the important constitutional questions presented without full briefing and argument and adequate opportunity for deliberation, we entertain grave doubts as to the action taken by the Court of Appeals.” 409 U. S., at 4-5. (Emphasis supplied.)

In the same opinion, we distinguished the cases of Terry v. Adams, 345 U. S. 461 (1953), and Smith v. Allwright, 321 U. S. 649 (1944), both cited in n. 4 of the Court’s opinion in the present case, on the ground that they involved invidious discrimination based on race in a primary contest within a single State. 409 U. S., at 4.

We see no reason to recede from any of the language we used in O’Brien v. Brown, supra, and therefore find the Court’s citation of that case to be a virtual repudiation-of it. The Court says, ante, at 491:

“Whatever the case of actions presenting claims that the Party’s delegate selection procedures are not exercised within the confines of the Constitution— and no such claims are made here — this is a case where ‘. . . the convention itself [was] the proper forum for determining intra-party disputes as to which delegates [should] be seated.’ O’Brien v. Brown, 409 U. S. 1, 4 (1972).”

In O’Brien v. Brown we were dealing, as we need not deal here, with actions presenting claims that the Party’s delegate selection procedures were not exercised within the confines of the Constitution, and it was in that context that the earlier quoted language from that case was used. That issue is not present in this case, nor are the others on which the Court disclaims any views, and for that reason we would think it better judicial procedure not to go beyond what we have already said in O’Brien v. Brown, and foreshadow results in cases not before us.

The Court states, ante, at 490, that the National Convention “serves the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State.” While this may be a perfectly apt statement of a political fact, we believe it is an unnecessarily broad and vague statement to be contained in an opinion of this Court. The political fact — that the interest served by national political conventions transcends the boundaries of any single State — weighs in favor of petitioners on the scale which balances their constitutional claim against the State’s interest in the integrity of its electoral process. But the dissenting opinion of Mr. Justice Pitney in Newberry v. United States, 256 U. S. 232, 285 (1921), without more, does not establish for us that there is a “national interest” which standing alone, apart from valid congressional legislation or constitutional provision, would override state regulation in this situation.

Nor can we agree with the Court’s characterization of the role of the States in this process when it says that “[tjhe States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates.” Ante, at 489-490. Under Art. II, § 1, the States are given the power to “appoint, in such Manner as the Legislature thereof may direct” Presidential electors. See In re Green, 134 U. S. 377, 379 (1890); McPherson v. Blacker, 146 U. S. 1, 27-28 (1892); Ray v. Blair, 343 U. S. 214 (1952); Oregon v. Mitchell, 400 U. S. 112, 291 (1970) (opinion of Stewart, J., joined by Burger, C. J., and Blackmun, J.). Under our constitutional system, the States also have residual authority in all areas not taken from them by the Constitution or by validly enacted congressional legislation. The question for us, therefore, is not whether the States have a “constitutionally mandated role” in the task of selecting Presidential and Vice-Presidential candidates, but whether the authority of the State of Illinois is sufficient in this case to authorize an injunction flatly prohibiting petitioners from asserting before the Democratic National Convention their clhim to be seated as delegates. We do not believe that it is, and therefore concur in the result reached by the Court. But we would rest the result unequivocally on the freedom to assemble and associate guaranteed by the First and Fourteenth Amendments, and neither discuss nor hint at resolution of issues neither presented here nor previously resolved by our cases.

Mb. Justice Powell,

concurring in part and dissenting in part.

I agree that the National Convention of the Democratic Party could not be compelled to seat respondents. I disagree, however, that the Illinois courts are without power to enjoin petitioners from sitting as delegates representing districts in that State. To this limited extent, I dissent.

The Illinois Legislature has enacted a comprehensive scheme for regulating the election of delegates to national party conventions, Ill. Rev. Stat., c. 46, § 7-1 et seq. (1973), including a means by which a defeated candidate may challenge the election. § 7-63. Respondents were duly elected in primaries held in various election districts in the city of Chicago. Petitioners, for the most part, were people who had lost in these primaries and who eventually were selected in private caucuses as a challenge delegation. They made no challenge under state law but, rather, they successfully unseated respondents at the Convention and had themselves seated as delegates representing the districts in which the ousted delegates had been elected.

The Illinois Appellate Court concluded that the Democratic Party

“most certainly could not seat people of their choice and force them upon the people of Illinois as their representatives, contrary to their elective mandate.” 14 Ill. App. 3d 460, 479, 302 N. E. 2d 614, 631 (1973).

I agree with this statement. Had the court’s decision been limited to this conclusion, it would not have infringed in any way the assoeiational rights of petitioners or the Democratic Party. The National Convention of the Party may seat whomever it pleases, including petitioners, as delegates at large. The State of Illinois, on the other hand, has a legitimate interest in protecting its citizens from being represented by delegates who have been rejected by these citizens in a democratic election. Accordingly I would affirm the injunctions of the trial court insofar as they bárred petitioners from purporting, contrary to Illinois law, to represent certain election districts of that State.

       The Hearing Officer found violations of Guidelines A-l (minority group participation), A-2 (women and youth participation), A-5 (existence of party rules), C-l (adequate public notice of party affairs), C-4 (timing of delegate selection), and C-6 (slate-making). Findings and Report of Cecil F. Poole, Hearing Officer (June 25, 1972). Guideline C-6 was as follows:
      “C-6 Slate-making
      “In mandating a full and meaningful opportunity t.o participate in the delegate selection process, the 1968 Convention meant to prohibit any practice in the process of selection which made it difficult for Democrats to participate. Since the process by which individuals are nominated for delegate positions and slates of potential delegates are formed is an integral and crucial part of the process by which delegates are actually .selected, the Commission requires State Parties to extend to the nominating process all guarantees of full and meaningful opportunity to participate in the delegate selection process. When State law controls, the Commission requires State Parties to make all feasible efforts to repeal, amend or otherwise modify such laws to accomplish the stated purpose.
      “Furthermore, whenever slates are presented to caucuses, meetings, conventions, committees, or to voters in a primary, the Commission requires State Parties to adopt procedures which assure that:
      “1. the bodies'making up the slates have been elected, assembled, or appointed for the slate-making task with adequate public notice that they would perform such task;
      “2. those persons making up each slate have adopted procedures ■ that will facilitate widespread participation in the slate-making process, with the proviso that any slate presented in the name of a presidential candidate in a primary State be assembled with due consultation with the presidential candidate or his representative.
      “3. adequate procedural safeguards are provided to assure that the right to challenge the presented slate is more than perfunctory and places no undue burden on the challengers.
      “When State law controls, the Commission requires State Parties to make all feasible efforts to repeal, amend or otherwise modify such laws to accomplish the stated purpose.”
      For comments on the development of the guidelines, see Schmidt & Whalen, Credentials Contests and the 1968 and. 1972 Democratic National Conventions, 82 Harv. L. Rev. 1438 (1969); Segal, Delegate Selection Standards: The Democratic Party’s Experience, 38 Geo. Wash. L. Rev. 873 (1970); Report of Commission on Party Structure and Delegate Selection: Mandate for Reform (1970), reprinted at 117 Cong. Rec. 32909 (1971).

       The injunction was obtained in a Circuit Court action filed April 19, 1972, by the Wigoda delegates against the Cousins delegates. In the interval between the filing of the suit and the action of the Credentials Committee on June 30, 1972, two proceedings occurred in the District Court for the Northern District of Illinois related to the suit. On April 20 petitioners removed the case to that federal court. On May 17 the case was remanded on the ground that there was no basis for federal jurisdiction. Wigoda v. Cousins, 342 F. Supp. 82. On June 30, the Court of Appeals for the Seventh Circuit, in an unpublished order, affirmed the remand. Wigoda v. Cousins, No. 72-1384.
      While the remand issue was pending, petitioners filed their own action in the District Court for the Northern District of Illinois seeking an injunction against respondents proceeding with the Circuit Court suit on the ground that it violated their First Amendment rights. On June 9, after trial, a preliminary injunction issued barring respondents from proceeding with the state-court action. Cousins v. Wigoda, Civil No. 72C 1108. That injunction was reversed by the Seventh Circuit on June 29. Cousins v. Wigoda, 463 F. 2d 603. Petitioners’ application to Mr. Justice Rehnquist, Circuit Justice, for a stay of the Court of Appeals order was denied on July 1. 409 U. S. 1201.

       The Appellate Court also affirmed another injunction of the Circuit Court entered August 2, 1972, barring petitioners from participating as delegates at a post-convention caucus on August 5, 1972, to select the Illinois representatives to the Democratic National Committee to serve until the 1976 Convention. Petitioners complied with that injunction and respondents participated in the August 5 caucus. Since the National Committee plans the National Convention the question of the validity of the August 2 injunction is analytically indistinguishable from the question of the validity of the July 8 injunction, and our decision today applies to both injunctions.

       We emphasize that this is the only question that we decide today. There are not before us in this case, and we intimate no views upon the merits of, such questions as:
      (1) whether the decisions of a national political party in the area of delegate selection constitute state or governmental action, and, if so, whether or to what extent principles of the political question doctrine counsel against judicial intervention. Respondents concede, and we agree, that “[i]n the context of the instant case, it is not necessary to determine whether Convention action is 'state action’ . . . .” Brief for Respondents 47. See Brown v. O’Brien, 152 U. S. App. D. C. 157, 469 F. 2d 563 (1972); Georgia v. National Democratic Party, 145 U. S. App. D. C. 102, 447 F. 2d 1271 (1971); Smith v. State Executive Committee of Democratic Party of Georgia, 288 F. Supp. 371 (ND Ga. 1968); Lynch v. Torquato, 343 F. 2d 370 (CA3 1965). See also the Texas White Primary Cases, Nixon v. Herndon, 273 U. S. 536 (1927); Nixon v. Condon, 286 U. S. 73 (1932); Smith v. Allwright, 321 U. S. 649 (1944); Terry v. Adams, 345 U. S. 461 (1953). For the differing views of commentators, see Note, Legal Issues of the 1972 Democratic Convention and Beyond, 4 Loyola U. of Chi. L. J. 137 (1973); Note, Regulation of Political Parties: Vote Dilution in the Presidential Nomination Procedure, 54 Iowa L. Rev. 471 (1968); Chambers & Rotunda, Reform of Presidential Nominating Conventions, 56 Va. L. Rev. 179 (1970); Note, Constitutional Safeguards in the Selection of Delegates to Presidential Nominating Conventions, 78 Yale L. J. 1228 (1969); Comment, One Man, One Vote and Selection of Delegates to National Nominating Conventions, 37 U. Chi. L. Rev. 536 (1970); Bellamy, Applicability of the Fourteenth Amendment to the Allocation of Delegates to the Democratic National Convention, 38 . Geo. Wash. L. Rev. 892 (1970); Raymar, Judicial Review of Credentials Contests: The Experience of the 1972 Democratic National Convention, 42 Geo. Wash. L. Rev. 1 (1973); Note, Judicial Intervention in the Presidential Candidate Selection Process: One Step Backwards, 47 N. Y. TJ. L. Rev. 1184 (1972).
      (2) whether national political parties are subject to the principles of the reapportionment decisions, or other constitutional restraints, in their methods of delegate selection and allocation. Compare Bode v. National Democratic Party, 146 U. S. App. D. C. 373, 452 F. 2d 1302 (1971), with Irish v. Democratic-Farmer-Labor Party, 399 F. 2d 119 (CA8 1968); and see Gray v. Sanders, 372 U. S. 368, 378 n. 10 (1963). For a history of a century of resolutions of credentials disputes through party procedures and machinery see R. Bain & J. Parris, Convention Decisions and Voting Records (2d ed. 1973); Goldstein, One Man, One Vote and the Political Convention, 40 U. Cin. L. Rev. 1 (1971),
      (3) whether or to what extent national political parties and their nominating conventions are regulable by, or only by, Congress. See Newberry v. United States, 256 U. S. 232, 275 (1921) (Pitney, J., dissenting); R. Horn, Groups and the Constitution 17-18 (1956); Note, Freedom of Association and the Selection of Delegates to National Political Conventions, 56 Cornell L. Rev. 148, 152-160 (1970).

       Our order provided that “[t]he applications for stays of the judgments of the Court of Appeals are granted.” 409 U. S., at 5. This order applied also to- Keane’s companion case, O’Brien v. Brown, 409 U. S. 1 (1972), which concerned challenges to the California delegation to the 1972 Democratic National Convention.

       The Illinois Appellate Court also found res judicata unavailable for other reasons, including a difference between the issue before it and the issue in Keane:

      “The issue which is central to the instant cause is the Illinois Election Code (Ill. Rev. Stat. 1971, ch. 46, §7-1 et seq.), and the right of the plaintiffs who were elected pursuant to its provisions to serve in their elective office. The issue which was central to the litigation which ensued in Keane v. National Democratic Party was the constitutionality of the guidelines of the National Democratic Party . . . .” 14 Ill. App. 3d 460, 468-469, 302 N. E. 2d 614, 623.

       Indeed, petitioners maintain only that the Court of Appeals’ decision was “presented” and “argued” before the Circuit Court judge, not that res judicata was formally pleaded. See Brief for Petitioners 16, 45. Moreover, while petitioners argued in the Circuit Court that the Court of Appeals’ injunction against the state proceeding was effective despite this Court’s stay, they did not couch the argument in terms of the Court of Appeals’ decision having res judicata effect. Transcript of July 8, 1972, pp. 25-30, 32 et seq.

       “It is possible that the Convention would have rejected the elected delegates and that Chicago, Illinois would have been without representation at the convention.” Brief for Respondents 46. Thus, respondents concede that their protected rights of political association do not entitle them to relief compelling the Party to accept them as delegates.

       Early Presidential nominations were made by caucuses of Members of Congress belonging to the National Parties. See W. Goodman, The Two-Party System in the United States 153-158 (3d ed. 1964). There have been recent proposals that parties use regional or national primaries to choose their nominees. See, e. g., New York Times, Apr. 18, 1972, p. 12, col. 5 (five regional primaries proposed by Senator Packwood; national primary proposed by Senators Mansfield and Aiken).

       Several delegations selected according to state law have been denied seating in Convention resolution of disputes. See, e. g., R. Bain & J. Parris, Convention Decisions and Voting Records 283-284, 323 (2d ed. 1973) (1952 Republican Convention, Georgia delegation; 1968 Democratic Convention, Mississippi delegation).

       Gratuitous observations are particularly inappropriate in this area where the Court has long eschewed passing on issues not required for resolution of the case presented. Gray v. Sanders, 372 U. S. 368, 378 n. 10 (1963). The crucial and sensitive nature of questions relating to the process of Presidential selection was pointed out by James Wilson, a delegate to the Constitutional Convention, in commenting on the manner of Presidential selection set forth in the Constitution:
      “This subject has greatly divided the House,- and will also divide people out of doors. It is in truth the most difficult of all on which we, have had to decide.” 2 M. Farrand, Records of the Federal Convention of 1787, p. 601 (Rev. ed. 1937).

       Article II, § 1, provides in part:
      “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors .... The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes ....”

       I also agree with the Court that this case intimates no views regarding other efforts to regulate party conventions. Congressional regulation of national conventions or state regulation of state primaries or conventions, for state offices raises different considerations requiring a wholly different balance.


source: Caselaw Access Project

author:
Mr. Justice Stewart
      Mr, Justice Brennan, MR. Justice White,

license: Public Domain

text:
    SCHLESINGER, SECRETARY OF DEFENSE, et al. v. BALLARD
    No. 73-776.
    Argued October 15, 1974
    Decided January 15, 1975

      Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and Rehnquist, JJ., joined. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 511. White, J., filed a dissenting statement, post, p. 521.

      Harriet S. Shapiro argued the cause for appellants. On the briefs were Solicitor General Bork, Assistant Attorney General Hills, Deputy Solicitor General LaFon-tant, Edmund W. Kitch, Robert E. Kopp, and Michael Kimmel.

      Charles R. Khoury, Jr., argued the cause for appellee. With him on the brief was Morris S. Dees, Jr.

   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). He brought suit in federal court claiming that if he had been a woman officer, he would have been subject to a different separation statute, 10 U. S. C. § 6401, under which he would have been entitled to 13 years of commissioned service before a mandatory discharge for want of promotion. He claimed that the application of § 6382 to him, when compared with the treatment of women officers subject to § 6401, was an unconstitutional discrimination based on sex in violation of the Due Process Clause of the Fifth Amendment.

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. 350 F. Supp. 167. Thereafter, the case came before the three-judge court for decision on the merits. Relying upon Frontiero v. Richardson, 411 U. S. 677, and concluding that the challenged mandatory-discharge provisions are supported solely by considerations of fiscal and administrative policy, the court held that § 6382 is unconstitutional because the 13-year tenure provision of § 6401 discriminates in favor of women without sufficient justification. 360 F. Supp. 643. Accordingly, the court enjoined the Navy from discharging Ballard for failure to be promoted to the grade of lieutenant commander before the expiration of 13 years of commissioned service. Id., at 648. We noted probable jurisdiction of this appeal from that injunctive order. 415 U. S. 912. See 28 U. S. C. § 1253.

I

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. Congress has also established the ratio of distribution of line officers in the several grades above lieutenant in fixed proportions to the total number of line officers. §§ 5442, 5447 (a).

The Secretary of the Navy is required periodically to convene selection boards to consider and recommend for promotion male fine 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 for promotion to the next higher grade. § 5756. Eligible officers are then recommended for promotion by the selection boards, based upon merit, and are placed on a promotion list and promoted in due course as vacancies occur in the higher ranks. § 5769. Because the number of lieutenant commanders is set by statute, the number of lieutenants, like Ballard, who may be recommended for promotion and placed on a promotion list in any year depends upon the number of vacancies existing and estimated for the coming year in the rank of lieutenant commander. § 5756.

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 officers with incentive and opportunity for promotion. It is for this reason, and not merely because of administrative or fiscal policy considerations, that § 6382 (a) requires that lieutenants be discharged when they are “considered as having failed of selection for promotion to the grade of lieutenant commander ... for the second time.” Similar selection-out rules apply to officers in different ranks who are twice passed over for promotion.

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 of officers within each zone is thus based on “a consideration of the number of vacancies estimated for the next higher grade in each of the next five years, the number of officers who will be eligible for selection in each of those years, and the terms of service that those officers will have completed.” § 5764 (a).

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 provides for mandatory discharge of a woman officer appointed under § 5590 when she “is not on a promotion list” and “has completed 13 years of active commissioned service in the Navy.” § 6401. Section 6401 was initially intended approximately to equate the length of service of women officers before mandatory discharge for want of promotion with that of male lieutenants discharged under § 6382 (a). Subsequently, however, Congress specifically recognized that the provisions of § 6401 would probably result in longer tenure for women lieutenants than for male lieutenants under § 6382. When it enacted legislation eliminating many of the former restrictions on women officers’ participation in the naval service in 1967, Congress expressly left undisturbed the 13-year tenure provision of § 6401. And both the House and the Senate Reports observed that the attrition provisions governing women line officers would parallel “present provisions with respect to male officers except that the discharge of male officers probably occurs about 2 years earlier.” S. Rep. No. 676, 90th Cong., 1st Sess., 12; H. R. Rep. No. 216, 90th Cong., 1st Sess., 17 (emphasis added).

II

It is against this background that we must decide whether, agreeably to the Due Process Clause of the Fifth Amendment, the Congress may accord to women naval officers a 13-year tenure of commissioned service under § 6401 before mandatory discharge for want of promotion, while requiring under § 6382 (a) the mandatory discharge of male lieutenants who have been twice passed over for promotion but who, like Ballard, may have had less than 13 years of commissioned service. In arguing that Congress has acted unconstitutionally, appellee relies primarily upon the Court’s recent decisions in Frontiero v. Richardson, 411 U. S. 677, and Reed v. Reed, 404 U. S. 71.

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:

“[A]ny 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,’ and therefore involves the 'very kind of arbitrary legislative choice forbidden by the [Constitution] . . . .’ Reed v. Reed, 404 U. S., at 77, 76. We therefore conclude that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, 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.” Id., at 690-691.

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.

In contrast, the different treatment of men and women naval officers under §§ 6382 and 6401 reflects, not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy-are not similarly situated with respect to opportunities for professional service. Appellee has not challenged the current restrictions on women officers’ participation in combat and in most sea duty. Specifically, “women may not be assigned to duty in aircraft that are engaged in combat missions nor may they be assigned to duty on vessels of the Navy other than hospital ships and transports.” 10 U. S. C. § 6015. Thus, in competing for promotion, female lieutenants will not generally have compiled records of seagoing service comparable to those of male lieutenants. In enacting and retaining § 6401, Congress may thus 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.” H. R. Rep. No. 216, supra, at 5. Cf. Kahn v. Shevin, 416 U. S. 351.

The complete rationality of this legislative classification is underscored by the fact that in corps where male and female lieutenants are similarly situated, Congress has not differentiated between them with respect to tenure. Thus women staff officers not appointed under § 5590 are subject to the same mandatory attrition rule of § 6382 (a) as are male officers. These include officers in the Medical, Dental, Judge Advocate General’s, and Medical Service Corps. See 10 U. S. C. §§ 5574, 5578, 5578a, 5579. Conversely, active male lieutenants who are members of the Nurse Corps, like female lieutenants in that Corps, are within the ambit of 10 U. S. C. § 6396 (c), which contains a 13-year tenure provision like § 6401.

In both Reed and Frontiero the reason asserted to justify the challenged gender-based classifications was administrative convenience, and that alone. Here, on the contrary, the operation of the statutes in question results in a flow of promotions commensurate with the Navy’s current needs and serves to motivate qualified commissioned officers to so conduct themselves that they may realistically look forward to higher levels of command. This Court has recognized that “it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.” Toth v. Quarles, 350 U. S. 11, 17. See also Orloff v. Willoughby, 345 U. S. 83, 94. The responsibility for determining how best our Armed Forces shall attend to that business rests with Congress, see U. S. Const., Art. I, § 8, els. 12-14, and with the President. See U. S. Const., Art. II, § 2, cl. 1. We cannot say that, in exercising its broad constitutional power here, Congress has violated the Due Process Clause of the Fifth Amendment.

The judgment is reversed.

Mr, Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join,

dissenting.

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. 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.

I

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. Therefore, the separation provisions for women line officers, given the rest of the statutory provisions applicable to them, had to be pegged to time served rather than to opportunities for promotion. The number of years selected for women line lieutenants, 13, corresponded exactly to the normal number of years Congress intended to precede separation for a male officer not chosen for promotion. See ante, at 504-505, n. 9. Thus, Congress’ original purpose in enacting slightly different separation provisions for men and women is quite certain — to create the same tenure in years for women lieutenants as for the average male lieutenant before involuntary separation was permitted.

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. Rather, in 1967 the normal tenure for men seems to have been about 11 years, see H. R. Rep. No. 216, 90th Cong., 1st Sess., 17; S. Rep. No. 676, 90th Cong., 1st Sess., 12; and in 1972, when respondent was due for discharge, it was eight or nine years. Brief for Appellants 16.

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 women by amending 10 U. S. C. § 5776. These additions make the retention of 13-year tenure for women line lieutenants somewhat anomalous, since the “failure of selection” designation appears to have no function except as an aid to determining involuntary separation. Thus, as the hesitant language the Court uses in describing Congress’ possible compensatory purpose recognizes, it is impossible to divine from the structure of the Act itself a reason for retaining the 13-year tenure for women but not for men.

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 in some instances involuntary retirement and separation provisions “permit women to remain on active duty for longer periods than male officers.” It believed that “[ujnder current circumstances, there is no logical basis for these differences.” S. Rep. No. 676, supra, at 2. (Emphasis supplied.) See H. R. Rep. No. 216, supra, at 2-3; Hearing on H. R. 4772, 4903, 5894, before the Senate Committee on Armed Services, 90th Cong., 1st Sess., 41 (1967). The 1967 Act was to “apply the standard attrition provisions of male officers promotion and retirement laws to women officers. The only exception to this would be the selective continuation of nurses.” H. R. Rep. No. 216, supra, at 3. (Emphasis supplied.) See S. Rep. No. 676, supra, at 2. In light of these statements, Congress could not have had the purpose of compensating women line officers for their inferior position in the Navy by retaining longer tenure periods for women.

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. (Emphasis supplied.)

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 the reason for the failure to revise §§ 6382 and 6401 is not clear, it is certainly plausible to conclude that Congress continued to believe, as it had in 1948, that the separation provisions for men and women would, given the opportunity to work properly, result in equal average tenure for both sexes.

II

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 the Navy can perceive no need for the gender-based classification under attack, the interest served by the classification, if any, can hardly be overriding or compelling.

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 their tenure before separation for nonpromotion is necessary to compensate for other disadvantages.

Ill

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 of our Armed Forces for battle cannot settle the issue before us. As Frontiero v. Richardson, 411 U. S. 677 (1973), illustrates, the fact that an equal protection claim arises from statutes concerning military personnel policy does not itself mandate deference to the congressional determination, at least if the sex-based classification is not itself relevant to and justified by the military purposes.

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.

Since the Government here has advanced no governmental interest fairly to be gleaned from §§ 6382 and 6401 or their history which can justify this gender-based classification, I would affirm the judgment below.

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.

       Title 10 U. S. C. §6382 provides:
      “(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.

       Title 10 U. S. C. §6401 (a) provides:
      “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.”

       The Fifth Amendment to the Constitution of the United States provides in pertinent part that no person shall “be deprived of life, liberty, or property, without due process of law.” Although it contains no Equal Protection Clause as does the Fourteenth Amendment, the Fifth Amendment’s Due Process Clause prohibits the Federal Government from engaging in discrimination that is “so unjustifiable as to be violative of due process.” Bolling v. Sharpe, 347 U. S. 497, 499. See also Schneider v. Rusk, 377 U. S. 163, 168.

       Similarly, the authorized strength of the Supply Corps and the Civil Engineers Corps is established in set proportions to the authorized number of line officers. 10 U. S. C. § 5404 (a). More complicated formulas set the bounds for the numbers of staff officers in ■ other corps. E. g., § 5404 (b).

       See S. Rep. No. 2120, 75th Cong., 3d Sess., 4. Parts of the Officer Personnel Act of 1947 that affected naval officers were codified in 10 U. S. C. § 5401 et seq., by the Act of Aug. 10, 1956, 70A Stat. 297. Title 10 U. S. C. § 6382 (a) is a codification of § 312 (h) of the Officer Personnel Act of 1947, 61 Stat. 860, and that section was based, in turn, on § 12 (c) of the Act of June 23, 1938, 52 Stat. 949.

       Title 10 U. S. C. § 6382 (b) calls for the mandatory, discharge of lieutenants (junior grade) who twice fail to be selected for promotion to the grade of lieutenant. In the grades above lieutenant, statutory provisions require the mandatory retirement, instead of discharge, of officers twice passed over for promotion. 10 U. S. C. • §§ 6376, 6379, 6380.

       Section 6401 does not apply to women officers, appointed pursuant to 10 U. S. C. §§ 5574, 5578, 5578a, and 5579, who are in the Medical, Dental, Judge Advocate General’s, and Medical Service Corps. These women staff officers are, like male officers, subject to §6382 (a).

       The reason for the “not on a promotion list” language of § 6401, as contrasted with the “failed of selection” language of §6382 (a), is in part historical. Section 6401 was enacted as §207 (j) of the Women's Armed Services Integration Act of 1948, 62 Stat. 368. The “promotion zone” system was not established for women appointed under § 5590 until 1967. Pub. L. 90-130, 81 Stat. 374 (1967). See § 5764(d).

       See Hearings on S. 1527 before the Senate Committee on Armed Services (subsequently S. 1641), 80th Cong., 1st Sess., 39. Although the statutory eligibility periods for promotion through the ranks to lieutenant commander is somewhat shorter, § 5751 (b), the normal time in service as an ensign, lieutenant (junior grade), and lieutenant is 12 years under peacetime conditions. § 5768 (a). Accordingly, a male line officer who had achieved the rank of lieutenant would typically have completed 12 years of service before being considered for the rank of lieutenant commander, and would have completed 13 years of service before being passed over twice for promotion to the grade of lieutenant commander.

       See Pub. L. 90-130, 81 Stat. 374 (1967). This Act repealed numerical and percentage restrictions on women officers in certain grades, removed restrictions on permanent appointment of women officers to the rank of captain, and authorized women officers under certain circumstances to be eligible for flag rank. Congress also established a “promotion zone” system for women officers and indicated that the promotion and attrition of female officers were generally to correspond to the treatment of male officers. S. Rep. No. 676, 90th Cong., 1st Sess., 2.

       According to the brief of the Solicitor General, the tenure differential has since been increased by the removal of time-in-grade restrictions and accelerated promotions resulting from the Vietnam conflict. See Exec. Order No. 11437, Dec. 2, 1968, 3 CFR 754 (1966-1970 Comp.). Thus in recent years the discharge of male officers under § 6382 (a) may have occurred about four years earlier than the discharge of women officers under § 6401, instead of the two years’ ■difference acknowledged by Congress in 1967.

       The dissenting opinion argues that, in retaining § 6401 in 1967, Congress may not have intended to give a longer tenure to women line officers than to their male counterparts, because “it is certainly plausible to conclude that Congress continued to believe, as it had in 1948, that the separation provisions for men and women would, given the opportunity to work properly, result in equal average tenure for both sexes.” Post, at 517. This conclusion cannot, however, be reconciled with Congress’ recognition that mandatory retirement provisions for women line officers “parallel present provisions with respect to male officers except that the discharge of male officers probably occurs about 2 years earlier.” S. Rep. No. 676, supra, at 12; H. R. Rep. No. 216, 90th Cong., 1st Sess., 17 (emphasis added). Alternatively, the dissent seems to imply that the “anomalous” retention in 1967 of the 13-year tenure provision of § 6401 may have resulted from congressional inadvertence. Post, at 514-515. But this view cannot be squared with the legislative history either. A major factor prompting the 1967 amendments was Congress’ express concern that unless restrictions on promotions of women naval officers were lifted, the operation of § 6401 would cause excessive forced retirement of women lieutenants. In discussing the problem, the House Report explicitly described the 13-year provision:
      “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 r.elief 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.

       We observe that because of the restrictions that were removed from women officers’ participation in naval service in 1967, see Act of Nov. 8, 1967, 81 Stat. 374; S. Rep. No. 676, 90th Cong., 1st Sess., more opportunity has become available for women officers. We are told by the Solicitor General that since 1967, the Secretary of the Navy has implemented a program for acceleration of women officers’ promotion and that today women are being considered for promotion within the same time periods as are men. Apparently believing that the need for a tenure differential has subsided, the Department of Defense has submitted a bill to Congress that would substitute for § 6401 the same rule that governs male lieutenants. See §§ 2 (5) and 4(18)(L) of H. R. 12405 (93d Cong., 2d Sess.), which contains a new provision as a proposed replacement of both § 6382 and § 6401. These developments no more than reinforce the view that it is for Congress, and not for the courts, to decide when the policy goals sought to be served by § 6401 are no longer necessary to the Navy’s officer promotion and attrition programs.

       Indeed, I find quite troublesome the notion that a gender-based difference in treatment can be justified by another, broader, gender-based difference in treatment imposed directly and currently by the Navy itself. While it is true that the restrictions upon women officers’ opportunities for professional service are not here directly under attack, they are obviously implicated on the Court's chosen ground for decision, and the Court ought at least to consider whether they may be valid before sustaining a provision it conceives to be based upon them.

       Also, even if it were possible to devise some alternative way of deciding when a woman officer had “failed of selection for promotion,” the limitation upon promotion opportunities for women meant that retention until two failures of selection could have been indefinite retention. In 1967, in fact, the statutory grade limitations upon promotions for women had produced such limited vacancies in the upper ranks that, but for the fact that some of the limitations were removed by the 1967 Act, promotions of lieutenants in the WAVES would have had to be suspended altogether for four or five years. H. R. Rep. No. 216, 90th Cong., 1st Sess., 6 (1967). See Hearings on H. R. 6894 before Subcommittee No. 1 of the House Committee on Armed Services, 90th Cong., 1st Sess., 384 (1967). If involuntary separation had been keyed to failure of selection, no WAVE line lieutenants could have been separated during those five years.

       Section 5768 sets out the normal times of service for male officers in the line of the Navy. Section 5764, the section establishing the promotion zone system, specifies that the number of officers in the promotion zone each year shall be chosen “in order to maintain a flow of promotion consistent with the terms of service set out in section 5768 . . . and in order best to assure to individuals in succeeding years equality of opportunity for promotion.” Thus, the “normal terms of service,” § 5768, were to be achieved through the administrative determination of promotion zones each year.

       The explanation seemingly lies in the provisions permitting suspension of these sections. Section 48 of the Act of Aug. 10, 1956, provided that:
      “(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 . . . 5764r-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.

       Other examples of the degree to which women officers were subjected to the same promotion and retention system as men are:
      (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 sec-
      tions 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.

       Congressman Rivers, Chairman of the House Committee on Armed Services, stated flatly during floor debate on H. R. 5894 that the bill assured that women “have the same tenure as male officers of the same grade.” 113 Cong. Rec. 11303 (May 1, 1967). (Emphasis supplied.)

       Senator Thurmond, floor manager of the bill, made much the same point during hearings on the bill. He said: “[T]he purpose of this bill is not to provide special promotional opportunities for women or to give them any advantage, but it is to place them on a parity with or give them equal opportunities . . . .” Hearing on H. R. 4772, 4903, 5894 before the Senate Committee on Armed Services, 90th Cong., 1st Sess., 46 (1967).

       In addition, there are indications in the hearings on the bill that the reason for not changing §§ 6382 and 6401 was that the promotional systems for all services were then under review, and that the Armed Services therefore did not want to change in the interim provisions believed basically to apply equitably to both sexes. See Hearings on H. R. 5894 before Subcommittee No. 1 of the House Committee on Armed Services, 90th Cong., 1st Sess., 383 (1967) (remarks of Assistant Secretary Morris); Hearings, Senate Committee on ■Armed Services, supra, at 44 (remarks of General Berg).

       The Court comments that the submission of H. R. 12405 "no more than reinforce [s] the view that it is for Congress, and not for the courts, to decide when the policy goals sought to be served by § 6401 are no longer necessary to the Navy’s officer promotion and attrition programs.” Ante, at 510 n. 13. But the Court does not, and could not, show that the gender-based classification underlying § 6401 was ever necessary to the Navy’s program; it only ventures that Congress “may . .. rationally,” ante, at 508 (emphasis supplied), have believed the policy to be wise or fair. Further, the close scrutiny which I believe gender-based classifications require necessitates that courts evaluate both the strength of the asserted interest and the need for the means chosen toward that end. Implicit in this task is that the courts do not necessarily accept the legislature’s decisions about the need for certain legislation when gender-based distinctions are involved.

       In neither Reed v. Reed, 404 U. S. 71 (1971), nor Frontiero v. Richardson, 411 U. S. 677 (1973), was it doubted that the statutes in question forwarded legitimate governmental goals, absent the classifications by sex. In Reed, the Court expressly noted that “the objective of reducing the workload on probate courts by eliminating one class of contests is not without some legitimacy,” 404 U. S., at 76, and it noted that the statutory scheme set up non-sex-based classifications toward the same end, which it seemingly approved. Id., at 77. Similarly, in Frontiero, the inquiry focused upon the “difference in treatment,” 411 U. S., at 679, accorded women and men in determining eligibility for dependents’ benefits, not upon the strength of the Government’s interest in according dependents’ benefits to members of the Armed Services. Thus, I fail to see how the strength of the governmental interest in the “up or out” system can distinguish Reed or Frontiero. See also James v. Strange, 407 U. S. 128, 141 (1972); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 173 (1972).

       Indeed, to do so is to undermine the very premises of deference to legislative determination. If a legislature, considering the competing factors, determines that it is wise policy to treat two groups of people differently in pursuit of a certain goal, courts often defer to that legislative determination. But when a legislature has decided
        not to pursue a certain goal, upholding a statute on the basis of that goal is not properly-deference to a legislative decision at all; it is deference to a decision which the legislature could have made but did not. See Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1,44-45 (1972).