Michael M. v. Superior Ct., 450 U.S. 464 (1981)

JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE STEWART, and JUSTICE POWELL joined.

The question presented in this case is whether California’s "statutory rape" law, § 261.5 of the Cal.Penal Code Ann. (West Supp. 1981), violates the Equal Protection Clause of the Fourteenth Amendment. Section 261.5 defines unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." The statute thus makes men alone criminally liable for the act of sexual intercourse.

In July, 1978, a complaint was filed in the Municipal Court of Sonoma County, Cal., alleging that petitioner, then a 17 1/2-year-old male, had had unlawful sexual intercourse with a female under the age of 18, in violation of § 261.5. The evidence adduced at a preliminary hearing showed that, at approximately midnight on June 3, 1978, petitioner and two friends approached Sharon, a 16 1/2-year-old female, and her sister as they waited at a bus stop. Petitioner and Sharon, who had already been drinking, moved away from the others and began to kiss. After being struck in the face for rebuffing petitioner’s initial advances, Sharon submitted to sexual intercourse with petitioner. Prior to trial, petitioner sought to set aside the information on both state and federal constitutional grounds, asserting that § 261.5 unlawfully discriminated on the basis of gender. The trial court and the California Court of Appeal denied petitioner’s request for relief, and petitioner sought review in the Supreme Court of California.

The Supreme Court held that "section 261.5 discriminates on the basis of sex, because only females may be victims and only males may violate the section." 25 Cal.3d 608, 611, 601 P.2d 572, 574. The court then subjected the classification to "strict scrutiny," stating that it must be justified by a compelling state interest. It found that the classification was "supported not by mere social convention, but by the immutable physiological fact that it is the female exclusively who can become pregnant." Ibid. Canvassing "the tragic human costs of illegitimate teenage pregnancies," including the large number of teenage abortions, the increased medical risk associated with teenage pregnancies, and the social consequences of teenage childbearing, the court concluded that the State has a compelling interest in preventing such pregnancies. Because males alone can "physiologically cause the result which the law properly seeks to avoid," the court further held that the gender classification was readily justified as a means of identifying offender and victim. For the reasons stated below, we affirm the judgment of the California Supreme Court.{1}

As is evident from our opinions, the Court has had some difficulty in agreeing upon the proper approach and analysis in cases involving challenges to gender-based classifications. The issues posed by such challenges range from issues of standing, see Orr v. Orr, 440 U.S. 268 (1979), to the appropriate standard of judicial review for the substantive classification. Unlike the California Supreme Court, we have not held that gender-based classifications are "inherently suspect," and thus we do not apply so-called "strict scrutiny" to those classifications. See Stanton v. Stanton, 421 U.S. 7 (1975). Our cases have held, however, that the traditional minimum rationality test takes on a somewhat "sharper focus" when gender-based classifications are challenged. See Craig v. Boren, 429 U.S. 190, 210 n.* (1976) (POWELL, J., concurring). In Reed v. Reed, 404 U.S. 71 (1971), for example, the Court stated that a gender-based classification will be upheld if it bears a "fair and substantial relationship" to legitimate state ends, while in Craig v. Boren, supra at 197, the Court restated the test to require the classification to bear a "substantial relationship" to "important governmental objectives."

Underlying these decisions is the principle that a legislature may not

make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class.

Parham v. Hughes, 441 U.S. 347, 354 (1979) (plurality opinion of STEWART, J.). But because the Equal Protection Clause does not "demand that a statute necessarily apply equally to all persons" or require "`things which are different in fact . . . to be treated in law as though they were the same,’" Rinaldi v. Yeager, 384 U.S. 305, 309 (1966), quoting Tigner v. Texas, 310 U.S. 141, 147 (1940), this Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. Parham v. Hughes, supra; Califano v. Webster, 430 U.S. 313 (1977); Schlesinger v. Ballard, 419 U.S. 498 (1975); Kahn v. Shevin, 416 U.S. 351 (1974). As the Court has stated, a legislature may "provide for the special problems of women." Weinberger v. Wiesenfeld, 420 U.S. 636, 653 (1975).

Applying those principles to this case, the fact that the California Legislature criminalized the act of illicit sexual intercourse with a minor female is a sure indication of its intent or purpose to discourage that conduct.{2} Precisely why the legislature desired that result is, of course, somewhat less clear. This Court has long recognized that "[i]nquiries into congressional motives or purposes are a hazardous matter," United States v. O’Brien, 391 U.S. 367, 383-384 (1968); Palmer v. Thompson, 403 U.S. 217, 224 (1971), and the search for the "actual" or "primary" purpose of a statute is likely to be elusive. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 (1977); McGinnis v. Royster, 410 U.S. 263, 276-277 (1973). Here, for example, the individual legislators may have voted for the statute for a variety of reasons. Some legislators may have been concerned about preventing teenage pregnancies, others about protecting young females from physical injury or from the loss of "chastity," and still others about promoting various religious and moral attitudes towards premarital sex.

The justification for the statute offered by the State and accepted by the Supreme Court of California, is that the legislature sought to prevent illegitimate teenage pregnancies. That finding, of course, is entitled to great deference. Reitman v. Mulkey, 387 U.S. 369, 373-374 (1967). And although our cases establish that the State’s asserted reason for the enactment of a statute may be rejected, if it "could not have been a goal of the legislation," Weinberger v. Wiesenfeld, supra at 648, n. 16, this is not such a case.

We are satisfied not only that the prevention of illegitimate pregnancy is at least one of the "purposes" of the statute, but also that the State has a strong interest in preventing such pregancy. At the risk of stating the obvious, teenage pregnancies, which have increased dramatically over the last two decades,{3} have significant social, medical, and economic consequences for both the mother and her child, and the State.{4} Of particular concern to the State is that approximately half of all teenage pregnancies end in abortion.{5} And of those children who are born, their illegitimacy makes them likely candidates to become wards of the State.{6}

We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity. The statute at issue here protects women from sexual intercourse at an age when those consequences are particularly severe.{7}

The question thus boils down to whether a State may attack the problem of sexual intercourse and teenage pregnancy directly by prohibiting a male from having sexual intercourse with a minor female.{8} We hold that such a statute is sufficiently related to the State’s objectives to pass constitutional muster.

Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. It is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on males thus serves to roughly "equalize" the deterrents on the sexes.

We are unable to accept petitioner’s contention that the statute is impermissibly underinclusive and must, in order to pass judicial scrutiny, be broadened so as to hold the female as criminally liable as the male. It is argued that this statute is not necessary to deter teenage pregnancy because a gender-neutral statute, where both male and female would be subject to prosecution, would serve that goal equally well. The relevant inquiry, however, is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the California Legislature is within constitutional limitations. Kahn v. Shevin, 416 U.S. at 356, n. 10.

In any event, we cannot say that a gender-neutral statute would be as effective as the statute California has chosen to enact. The State persuasively contends that a gender-neutral statute would frustrate its interest in effective enforcement. Its view is that a female is surely less likely to report violations of the statute if she herself would be subject to criminal prosecution.{9} In an area already fraught with prosecutorial dificulties, we decline to hold that the Equal Protection Clause requires a legislature to enact a statute so broad that it may well be incapable of enforcement.{10}

We similarly reject petitioner’s argument that § 261.5 is impermissibly overbroad because it makes unlawful sexual intercourse with prepubescent females, who are, by definition, incapable of becoming pregnant. Quite apart from the fact that the statute could well be justified on the grounds that very young females are particularly susceptible to physical injury from sexual intercourse, see Rundlett v. Oliver, 607 F.2d 495 (CA1 1979), it is ludicrous to suggest that the Constitution requires the California Legislature to limit the scope of its rape statute to older teenagers and exclude young girls.

There remains only petitioner’s contention that the statute is unconstitutional as it is applied to him because he, like Sharon, was under 18 at the time of sexual intercourse. Petitioner argues that the statute is flawed because it presumes that, as between two persons under 18, the male is the culpable aggressor. We find petitioner’s contentions unpersuasive. Contrary to his assertions, the statute does not rest on the assumption that males are generally the aggressors. It is, instead, an attempt by a legislature to prevent illegitimate teenage pregnancy by providing an additional deterrent for men. The age of the man is irrelevant, since young men are as capable as older men of inflicting the harm sought to be prevented.

In upholding the California statute, we also recognize that this is not a case where a statute is being challenged on the grounds that it "invidiously discriminates" against females. To the contrary, the statute places a burden on males which is not shared by females. But we find nothing to suggest that men, because of past discrimination or peculiar disadvantages, are in need of the special solicitude of the courts. Nor is this a case where the gender classification is made "solely for . . . administrative convenience," as in Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (emphasis omitted), or rests on "the baggage of sexual stereotypes" as in Orr v. Orr, 440 U.S. at 283. As we have held, the statute instead reasonably reflects the fact that the consequences of sexual intercourse and pregnancy fall more heavily on the female than on the male.

Accordingly the judgment of the California Supreme Court is

Affirmed.

1. The lower federal courts and state courts have almost uniformly concluded that statutory rape law are constitutional. See, e.g., Rundlett v. Oliver, 607 F.2d 495 (CA1 1979); Hall v. McKenzie, 537 F.2d 1232 (CA4 1976); Hall v. State, 365 So.2d 1249, 1252-1253 (Ala.App. 1978), cert. denied, 365 So.2d 1253 (Ala.1979); State v. Gray, 122 Ariz. 445, 446-477, 595 P.2d 990, 991-992 (1979); People v. Mackey, 46 Cal.App.3d 755, 760-761, 120 Cal.Rptr. 157, 160, cert. denied, 423 U.S. 951 (1975); People v. Salinas, 191 Colo. 171, 551 P.2d 703 (1976); State v. Brothers, 384 A.2d 402 (Del.Super.1978); In re W.E.P., 318 A.2d 286, 289-290 (DC 1974); Barnes v. State, 244 Ga. 302, 303-304, 260 S.E.2d 40, 41-42 (1979); State v. Drake, 219 N.W.2d 492, 495-496 (Iowa 1974); State v. Bell, 377 So.2d 303 (La.1979); State v. Rundlett, 391 A.2d 815 (Me.1978); Green v. State, 270 So.2d 695 (Miss.1972); In re J.D.G., 498 S.W.2d 786, 792-793 (Mo.1973); State v. Meloon, 116 N.H. 669, 366 A.2d 1176 (1976); State v. Thompson, 162 N.J.Super. 302, 392 A.2d 678 (1978); People v. Whidden, 51 N.Y.2d 457, 415 N.E.2d 927 (1980); State v. Wilson, 296 N.C. 298, 311-313, 250 S.E.2d 621, 629-630 (1979); Olson v. State, 588 P.2d 1018 (Nev.1979); State v. Elmore, 24 Ore.App. 651, 546 P.2d 1117 (1976); State v. Ware, ___ R.I. ___ , 418 A.2d 1 (1980); Roe v. State, 584 S.W.2d 257, 259 (Tenn.Crim.App. 1979); Ex parte Groves, 571 S.W.2d 888, 892-893 (Tex.Crim.App. 1978); Moore v. McKenzie, 236 S.E.2d 342, 342-343 (W.Va.1977); Flores v. State, 69 Wis.2d 509, 510-511, 230 N.W.2d 637, 638 (1975). Contra, Navedo v. Preisser, 630 F.2d 636 (CA8 1980); United States v. Hicks, 625 F.2d 216 (CA9 1980); Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977) (limited in Rundlett v. Oliver, supra), cert. denied, 436 U.S. 950 (1978).

2. The statute was enacted as part of California’s first penal code in 1850, 1850 Cal.Stats., ch. 99, § 47, p. 234, and recodified and amended in 1970.

3. In 1976, approximately one million 15-to-19-year-olds became pregnant, one-tenth of all women in that age group. Two-thirds of the pregnancies were illegitimate. Illegitimacy rates for teenagers (births per 1,000 unmarried females ages 14 to 19) increased 75% for 14-to-17-year-olds between 1961 and 1974 and 33% for 18-to-19-year-olds. Alan Guttmacher Institute, 11 Million Teenagers 10, 13 (1976); C. Chilman, Adolescent Sexuality In a Changing American Society 195 (NIH Pub. No. 80-1426, 1980).

4. The risk of maternal death is 60% higher for a teenager under the age of 15 than for a women in her early twenties. The risk is 13% higher for 15-to-19-year-olds. The statistics further show that most teenage mothers drop out of school and face a bleak economic future. See, e.g., 11 Million Teenagers, supra at 23, 25; Bennett & Bardon, The Effects of a School Program On Teenager Mothers and Their Chil&ren, 47 Am.J.Orthopsychiatry 671 (1977); Phipps-Yonas, Teenage Pregnancy and Motherhood, 50 Am.J.Orthopsychiatry 403, 414 (1980).

5. This is because teenagers are disproportionately likely to seek abortions. Center for Disease Control, Abortion Surveillance 1976, pp. 22-24 (1978). In 1978, for example, teenagers in California had approximately 54,000 abortions and 53,800 live births. California Center for Health Statistics, Reproductive Health Status of California Teenage Women 1, 23 (Mar.1980).

6. The policy and intent of the California Legislature evinced in other legislation buttresses our view that the prevention of teenage pregnancy is a purpose of the statute. The preamble to the Pregnancy Freedom of Choice Act, for example, states:

The legislature finds that pregnancy among unmarried persons under 21 years of age constitutes an increasing social problem in the State of California.

Cal.Welf. & Inst.Code Ann. § 16145 (West 1980).

Subsequent to the decision below, the California Legislature considered and rejected proposals to render § 261.5 gender neutral, thereby ratifying the judgment of the Galifornia Supreme Court. That is enough to answer petitioner’s contention that the statute was the " `accidental byproduct of a traditional way of thinking about females.’" Califano v. Webster, 430 U.S. 313, 320 (1977) (quoting Califano v. Goldfarb, 430 U.S. 199, 223 (1977) (STEVENS, J., concurring in judgment)). Certainly this decision of the California Legislature is as good a source as is this Court in deciding what is "current" and what is "outmoded" in the perception of women.

7. Although petitioner concedes that the State has a "compelling" interest in preventing teenage pregnancy, he contends that the "true" purpose of § 261.5 is to protect the virtue and chastity of young women. As such, the statute is unjustifiable because it rests on archaic stereotypes. What we have said above is enough to dispose of that contention. The question for us -- and the only question under the Federal Constitution -- is whether the legislation violates the Equal Protection Clause of the Fourteenth .mendment, not whether its supporters may have endorsed it for reasons no longer generally accepted. Even if the preservation of female chastity were one of the motives of the statute, and even if that motive be impermissible, petitioner’s argument must fail because

[i]t is a familiar practice of constitutional law that this court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.

United States v. O’Brien, 391 U.S. 367, 383 (1968). In Orr v. Orr, 440 U.S. 268 (1979), for example, the Court rejected one asserted purpose as impermissible, but then considered other purposes to determine if they could justify the statute. Similarly, in Washington v. Davis, 426 U.S. 229, 243 (1976), the Court distinguished Palmer v. Thompson, 403 U.S. 217 (1971), on the grounds that the purposes of the ordinance there were not open to impeachment by evidence that the legislature was actually motivated by an impermissible purpose. See also Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 270, n. 21 (1977); Mobile v. Bolden, 446 U.S. 55, 91 (1980) (STEVENS, J., concurring in judgment).

8. We do not understand petitioner to question a State’s authority to make sexual intercourse among teenagers a criminal act, at least on a gender-neutral basis. In Carey v. Population Services International, 431 U.S. 678, 694, n. 17 (1977) (plurality opinion of BRENNAN, J.), four Members of the Court assumed for the purposes of that case that a State may regulate the sexual behavior of minors, while four other Members of the Court more emphatically stated that such regulation would be permissible. Id. at 702, 703 (WHITE, J., concurring in part and concurring in result); id. at 705-707, 709 (POWELL, J., concurring in part and concurring in judgment); id. at 713 (STEVENS, J., concurring in part and concurring in judgment); id. at 718 (REHNQUIST, J., dissenting). The Court has long recognized that State has even broader authority to protect the physical, mental, and moral wellbeing of its youth than of its adults. See, e.g., Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 72-74 (1976); Ginsberg v. New York, 390 U.S. 629, 639-640 (1968); Prince v. Massachusetts, 321 U.S. 158, 170 (1944).

9. Petitioner contends that a gender-neutral statute would not hinder prosecutions because the prosecutor could take into account the relative burdens on females and males and generally only prosecute males. But to concede this is to concede all. If the prosecutor, in exercising discretion, will virtually always prosecute just the man and not the woman, we do not see why it is impermissible for the legislature to enact a statute to the same effect.

10. The question whether a statute is substantially related to its asserted goals is, at best, an opaque one. It can be plausibly argued that a gender-neutral statute would produce fewer prosecutions than the statute at issue here. See STEWART, J., concurring, post at 481, n. 13. JUSTICE BRENNAN’s dissent argues, on the other hand, that

even assuming that a gender-neutral statute would be more difficult to enforce, . . . [c]ommon sense . . . suggests that a gender-neutral statutory rape law is potentially a greater deterrent of sexual activity than a gender-based law, for the simple reason that a gender-neutral law subjects both men and women to criminal sanctions, and thus arguably has a deterrent effect on twice as many potential violators.

Post at 493-494 (emphasis deleted). Where such differing speculations as to the effect of a statute are plausible, we think it appropriate to defer to the decision of the California Supreme Court,

armed as it was with the knowledge of the facts and circumstances concerning the passage and potential impact of [the statute], and familiar with the milieu in which that provision would operate.

Reitman v. Mulkey, 387 U.S. 369, 378-379 (1967).

It should be noted that two of the three cases relied upon by JUSTICE BRENNAN’s dissent are readily distinguishable from the instant one. See post at 490, n. 3. In both Navedo v. Preisser, 630 F.2d 636 (CA8 1980), and Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977), cert. denied, 436 U.S. 950 (1978), the respective governments asserted that the purpose of the statute vas to protect young women from physical injury. Both courts rejected the justification on the grounds that there had been no showing that young females are more likely than males to suffer physical injury from sexual intercourse. They further held, contrary to our decision, that pregnancy prevention was not a "plausible" purpose of the legislation. Thus, neither court reached the issue presented here, whether the statute is substantially related to the prevention of teenage pregnancy. Significantly, Meloon has been severely limlted by Rundlett v. Oliver, 607 F.2d 495 (CA1 1979), where the court upheld a statutory rape law on the ground that the State had shown that sexual intercourse physically injures young women more than males. Here, of course, even JUSTICE BRENNAN’s dissent does not dispute that young women suffer disproportionately the deleterious consequences of illegitimate pregnancy.