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.1 Thus, the gender-*512based 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.2 Therefore, *513the 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. 9.3 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 5768.4 Rather, in 1967 the *514normal 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 *515women by amending 10 U. S. C. § 5776.5 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 *516in 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 3.6 (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 3.7 (Emphasis supplied.)
*517To 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.8
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 *518the 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.9
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 increas*519ing 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.10
For this same reason, the invocation of the deference due Congress in determining how best to assure the readi*520ness 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.11
*521Since 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.
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 *512chosen 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 *513years. 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 *514sections 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 *517or 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 *521not 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).