U.S. Supreme Court Michael M. v. Superior Ct., 450
U.S. 464 (1981) Michael M. v. Superior
Court No. 79-1344 Argued November 4,
1980 Decided March 23,
1981 450
U.S. 464 CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA Syllabus Petitioner, then a 17 1/2-year-old male, was charged with
violating California's "statutory rape" law, which 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." Prior to trial, petitioner sought to
set aside the information on both state and federal constitutional
grounds, asserting that the statute unlawfully discriminated on the
basis of gender since men alone were criminally liable thereunder.
The trial court and the California Court of Appeal denied relief,
and on review the California Supreme Court upheld the statute. Held: The judgment is affirmed. Pp. 450 U. S.
468 -476; 450 U. S.
481 -487. 25 Cal. 3d
608 , 601 P.2d 572, affirmed.

															JUSTICE REHNQUIST, joined by CHIEF JUSTICE BURGER, JUSTICE
STEWART, and JUSTICE POWELL, concluded that the statute does not
violate the Equal Protection Clause of the Fourteenth Amendment.
Pp. 450 U. S.
468 -476.

															(a) Gender-based classifications are not "inherently suspect" so
as to be subject to so-called "strict scrutiny," but will be upheld
if they bear a "fair and substantial relationship" to legitimate
state ends. Reed v. Reed, 404 U. S.
71 . 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 , 384 U. S. 309 ,
a statute will be upheld where the gender classification is not
invidious, but rather realistically reflects the fact that the
sexes are not similarly situated in certain circumstances. Pp. 450 U. S.
468 -469.

															(b) One of the purposes of the California statute in which the
State has a strong interest is the prevention of illegitimate
teenage pregnancies. The statute protects women from sexual
intercourse and pregnancy at an age when the physical, emotional,
and psychological consequences are particularly severe. Because
virtually all of the significant harmful and identifiable
consequences of teenage pregnancy fall on the female, a legislature
acts well within its authority when it Page 450 U. S. 465 elects to punish only the participant who, by nature, suffers
few of the consequences of his conduct. Pp. 450 U. S.
470 -473.

															(c) There is no merit in 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. The relevant inquiry 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. In any event, a gender-neutral statute
would frustrate the State's interest in effective enforcement,
since a female would be less likely to report violations of the
statute if she herself would be subject to prosecution. The Equal
Protection Clause does not require a legislature to enact a statute
so broad that it may well be incapable of enforcement. Pp. 450 U. S.
473 -474.

															(d) Nor is the statute impermissibly overbroad because it makes
unlawful sexual intercourse with prepubescent females, incapable of
becoming pregnant. Aside from the fact that the statute could be
justified on the grounds that very young females are particularly
susceptible to physical injury from sexual intercourse, the
Constitution does not require the California Legislature to limit
the scope of the statute to older teenagers and exclude young
girls. P. 450 U. S.
475 .

															(e) And the statute is not unconstitutional as applied to
petitioner who, like the girl involved, was under 18 at the time of
sexual intercourse, on the asserted ground that the statute
presumes in such circumstances that the male is the culpable
aggressor. The statute does not rest on such an assumption, but
instead is an attempt 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. P. 450 U. S.
475 .

															BLACKMUN, J., concluded that the California statutory rape law
is a sufficiently reasoned and constitutional effort to control at
its inception the problem of teenage pregnancies, and that the
California Supreme Court's judgment should be affirmed on the basis
of the applicable test for gender-based classifications as set
forth in Reed v. Reed, 404 U. S. 71 , 404 U. S. 76 ,
and Craig v. Boren, 429 U. S. 190 , 429 U. S. 197 .
Pp. 450 U. S.
481 -487.

															REHNQUIST, J., announced the judgment of the Court and delivered
an opinion, in which BURGER, C.J. and STEWART and POWELL, JJ.,
joined. STEWART, J., filed a concurring opinion, post, p. 450 U. S. 476 .
BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 450 U. S. 481 .
BRENNAN, J., filed a dissenting opinion, in which WHITE and
MARSALL, JJ., joined, post, p. 450 U. S. 488 .
STEVENS, J., filed a dissenting opinion, post, p. 450 U. S.
496 . Page 450 U. S. 466 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, Page 450 U. S. 467 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. [ Footnote 1 ] Page 450 U. S. 468 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 , 429 U. S. 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 Page 450 U. S. 469 bears a "fair and substantial relationship" to legitimate state
ends, while in Craig v. Boren, supra at 429 U. S. 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 , 441 U. S. 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 , 384 U. S. 309 (1966), quoting Tigner v. Texas, 310 U.
S. 141 , 310 U. S. 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 , 420 U. S. 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. [ Footnote 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 , 391 U. S.
383 -384 (1968); Palmer v. Thompson, 403 U. S. 217 , 403 U. S. 224 (1971), and the Page 450 U. S. 470 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 , 429 U. S. 265 (1977); McGinnis v. Royster, 410 U.
S. 263 , 410 U. S.
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 , 387 U. S.
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 420 U. S. 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,
[ Footnote 3 ] have significant
social, medical, and economic consequences for both the mother and
her child, and the State. [ Footnote
4 ] Page 450 U. S. 471 Of particular concern to the State is that approximately half of
all teenage pregnancies end in abortion. [ Footnote 5 ] And of those children who are born, their
illegitimacy makes them likely candidates to become wards of the
State. [ Footnote 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 Page 450 U. S. 472 protects women from sexual intercourse at an age when those
consequences are particularly severe. [ Footnote 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. [ Footnote 8 ] We hold
that such a statute is Page 450 U. S. 473 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 3 416 U. S. 56 , 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 Page 450 U. S. 474 violations of the statute if she herself would be subject to
criminal prosecution. [ Footnote
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. [ Footnote 10 ] Page 450 U. S. 475 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. Page 450 U. S. 476 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 , 411 U. S. 690 (1973) (emphasis omitted), or rests on "the baggage of sexual
stereotypes" as in Orr v. Orr, 440 U.S. at 440 U. S. 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. [ Footnote 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).

															[ Footnote 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.

															[ Footnote 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).

															[ Footnote 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).

															[ Footnote 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).

															[ Footnote 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 , 430 U. S. 320 (1977) (quoting Califano v. Goldfarb, 430 U.
S. 199 , 430 U. S. 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. [ Footnote 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 , 391 U. S. 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 , 426 U. S. 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 , 429 U. S. 270 ,
n. 21 (1977); Mobile v. Bolden, 446 U. S.
55 , 446 U. S. 91 (1980) (STEVENS, J., concurring in judgment).

															[ Footnote 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 , 431 U. S. 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 431 U. S. 702 , 431 U. S. 703 (WHITE, J., concurring in part and concurring in result); id. at 431 U. S.
705 -707, 431 U. S. 709 (POWELL, J., concurring in part and concurring in judgment); id. at 431 U. S. 713 (STEVENS, J., concurring in part and concurring in judgment); id. at 431 U. S. 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 , 428 U. S. 72 -74
(1976); Ginsberg v. New York, 390 U.
S. 629 , 390 U. S.
639 -640 (1968); Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 170 (1944).

															[ Footnote 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.

															[ Footnote 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 450 U. S. 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 450 U. S.
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 , 387 U. S.
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 450 U. S. 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.

															JUSTICE STEWART, concurring.

															Section 261.5, on its face, classifies on the basis of sex. A
male who engages in sexual intercourse with an underage female who
is not his wife violates the statute; a female who engages in
sexual intercourse with an underage male who is not her husband
does not. [ Footnote 2/1 ] The
petitioner contends that this state law, which punishes only males
for the conduct in question, violates his Fourteenth Amendment
right to the equal protection of the law. The Court today correctly
rejects that contention. A At the outset, it should be noted that the statutory
discrimination, when viewed as part of the wider scheme of
California law, is not as clearcut as might at first appear.
Females are not freed from criminal liability in California for
engaging in sexual activity that may be harmful. It is unlawful,
for example, for any person, of either sex, to molest, annoy, or
contribute to the delinquency of anyone under 18 years of Page 450 U. S. 477 age. [ Footnote 2/2 ] All persons
are prohibited from committing "any lewd or lascivious act,"
including consensual intercourse, with a child under 14. [ Footnote 2/3 ] And members of both sexes may
be convicted for engaging in deviant sexual acts with anyone under
18. [ Footnote 2/4 ] Finally, females
may be brought within the proscription of § 261.5 itself, since a
female may be charged with aiding and abetting its violation.
[ Footnote 2/5 ]

															Section 261.5 is thus but one part of a broad statutory scheme
that protects all minors from the problems and risks attendant upon
adolescent sexual activity. To be sure, § 261.5 creates an
additional measure of punishment for males who engage in sexual
intercourse with females between the ages of 14 and 17. [ Footnote 2/6 ] The question then is whether
the Constitution prohibits a state legislature from imposing this additional sanction on a gender-specific basis. B The Constitution is violated when government, state or federal,
invidiously classifies similarly situated people on the basis of
the immutable characteristics with which they were Page 450 U. S. 478 born. Thus, detrimental racial classifications by government
always violate the Constitution, for the simple reason that, so far
as the Constitution is concerned, people of different races are
always similarly situated. See Fullilove v. Klutznick, 448 U. S. 448 , 448 U. S. 522 (dissenting opinion); McLaughlin v. Florida, 379 U.
S. 184 , 379 U. S. 198 (concurring opinion); Brown v. Board of Ed., 347 U.
S. 483 ; Plessy v. Ferguson, 163 U.
S. 537 , 163 U. S. 552 (dissenting opinion). By contrast, while detrimental gender
classifications by government often violate the Constitution, they
do not always do so, for the reason that there are differences
between males and females that the Constitution necessarily
recognizes. In this case, we deal with the most basic of these
differences: females can become pregnant as the result of sexual
intercourse; males cannot.

															As was recognized in Parham v. Hughes, 441 U.
S. 347 , 441 U. S.
354 ,

															"a State is not free to 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."

															Gender-based classifications may not be based upon
administrative convenience, or upon archaic assumptions about the
proper roles of the sexes. Craig v. Boren, 429 U.
S. 190 ; Frontiero v. Richardson, 411 U.
S. 677 ; Reed v. Reed, 404 U. S.
71 . But we have recognized that, in certain narrow
circumstances, men and women are not similarly situated; in these
circumstances, a gender classification based on clear differences
between the sexes is not invidious, and a legislative
classification realistically based upon those differences is not
unconstitutional. See Parham v. Hughes, supra; Califano v.
Webster, 430 U. S. 313 , 430 U. S.
316 -317; Schlesinger v. Ballard, 419 U.
S. 498 ; cf. San Antonio Independent School Dist v.
Rodriguez, 411 U. S. 1 , 411 U. S. 59 (concurring opinion).

															"[G]ender-based classifications are not invariably invalid. When
men and women are not, in fact, similarly situated in the area
covered by the legislation in question, the Equal Protection Clause
is not violated." Caban v. Mohammed, 441 U. S. 380 , 441 U. S. 398 (dissenting opinion). Page 450 U. S. 479 Applying these principles to the classification enacted by the
California Legislature, it is readily apparent that § 261.5 does
not violate the Equal Protection Clause. Young women and men are
not similarly situated with respect to the problems and risks
associated with intercourse and pregnancy, and the statute is
realistically related to the legitimate state purpose of reducing
those problems and risks. C As the California Supreme Court's catalog shows, the pregnant
unmarried female confronts problems more numerous and more severe
than any faced by her male partner. [ Footnote 2/7 ] She alone endures the medical risks of
pregnancy or abortion. [ Footnote
2/8 ] She suffers disproportionately the social, educational,
and emotional consequences of pregnancy. [ Footnote 2/9 ] Recognizing this disproportion, Page 450 U. S. 480 California has attempted to protect teenage females by
prohibiting males from participating in the act necessary for
conception. [ Footnote 2/10 ]

															The fact that males and females are not similarly situated with
respect to the risks of sexual intercourse applies with the same
force to males under 18 as it does to older males. The risk of
pregnancy is a significant deterrent for unwed young females that
is not shared by unmarried males, regardless of their age.
Experienced observation confirms the common sense notion that
adolescent males disregard the possibility of pregnancy far more
than do adolescent females. [ Footnote
2/11 ] And to the extent that § 261.5 may punish males for
intercourse with prepubescent females, that punishment is
justifiable because of the substantial physical risks for
prepubescent females that are not shared by their male
counterparts. [ Footnote 2/12 ] Page 450 U. S. 481 D The petitioner argues that the California Legislature could have
drafted the statute differently, so that its purpose would be
accomplished more precisely.

															"But the issue, of course, is not whether the statute could have
been drafted more wisely, but whether the lines chosen by the . . .
[l]egislature are within constitutional limitations." Kahn v. Shevin, 416 U. S. 351 , 416 U. S. 356 ,
n. 10. That other States may have decided to attack the same
problems more broadly, with gender-neutral statutes, does not mean
that every State is constitutionally compelled to do so. [ Footnote 2/13 ] E In short, the Equal Protection Clause does not mean that the
physiological differences between men and women must be
disregarded. While those differences must never be permitted to
become a pretext for invidious discrimination, no such
discrimination is presented by this case. The Constitution surely
does not require a State to pretend that demonstrable differences
between men and women do not really exist.

															[ Footnote 2/1 ] But see 450
U.S. 464 fn2/5|>n. 5 and accompanying text, infra. [ Footnote 2/2 ] See Cal.Penal Code Ann. §§ 272, 647a (West Supp.
1981).

															[ Footnote 2/3 ]

															Cal.Penal Code Ann. § 288 (West Supp. 1981). See People v.
Dontanville, 10 Cal. App. 3d
783 , 796, 89 Cal. Rptr.
172 , 180 (2d Dist.).

															[ Footnote 2/4 ] See Cal.Penal Code Ann. §§ 286(b)(1), 288a(b)(1) (West
Supp. 1981) .

															[ Footnote 2/5 ] See Cal.Penal Code Ann. § 31 (West 1970); People v.
Haywood, 131 Cal. App.
2d 259 , 280 P.2d 180 (2d Dist.); People v.
Lewis, 113 Cal. App.
2d 468 , 248 P.2d 461 (1st Dist.). According to statistics
maintained by the California Department of Justice Bureau of
Criminal Statistics, approximately 14% of the juveniles arrested
for participation in acts made unlawful by § 261.5 between 1975 and
1979 were females. Moreover, an underage female who is as culpable
as her male partner, or more culpable, may be prosecuted as a
juvenile delinquent. Cal.Welf. & Inst.Code Ann. § 602 (West
Supp. 1981); In re Gladys R., 1 Cal. 3d
855 , 867-869, 464 P.2d 127, 136-138.

															[ Footnote 2/6 ]

															Males and females are equally prohibited by § 288 from sexual
intercourse with minors under 14. Compare Cal.Penal Code
Ann. § 288 (West Supp. 1981) with Cal.Penal Code Ann. §§
18, 264 (West Supp. 1981).

															[ Footnote 2/7 ]

															The court noted that, from 1971 through 1976, 83.6% of the 4,860
children born to girls uder 15 in California were illegitimate, as
were 51% of those born to girls 15 to 17. The court also observed
that, while accounting for only 21% of California pregnancies in
1976, teenagers accounted for 34.7% of legal abortions. See
ante at 450 U. S. 470 ,
n. 3.

															[ Footnote 2/8 ]

															There is also empirical evidence that sexual abuse of young
females is a more serious problem than sexual abuse of young males.
For example, a review of five studies found that 88% of sexually
abused minors were female. Jaffe, Dynneson, & ten Bensel,
Sexual Abuse of Children, 129 Am.J. of Diseases of Children 689,
690 (1975). Another study, involving admissions to a hospital
emergency room over a 3-year period, reported that 86 of 100
children examined for sexual abuse were girls. Orr & Prietto,
Emergency Management of Sexually Abused Children, 133 Am.J. of
Diseased Children 630 (1979). See also State v. Craig, 169
Mont. 150, 156-157, 545 P.2d 649, 653; Sarafino, An Estimate of
Nationwide Incidence of Sexual Offenses Against Children, 58 Child
Welfare 127, 131 (1979).

															[ Footnote 2/9 ]

															Most teenage mothers do not finish high school, and are
disadvantaged economically thereafter. See Moore, Teenage
Childbirth and Welfare Dependency, 10 Family Planning Perspectives
233-235 (1978). The suicide rate for teenage mothers is seven times
greater than that for teenage girls without children. F. Nye,
School-Age Parenthood (Wash.State U.Ext.Bull. No. 667) 8 (1976).
And 60% of adolescent mothers aged 15 to 17 are on welfare within
two to five years of the birth of their children. Teenage
Pregnancy, Everybody's Problem 3-4 (DHEW Publication (HSA) No.
77-5619).

															[ Footnote 2/10 ]

															Despite the increased availability of contraceptives and sex
education, the pregnancy rates for young women are increasing. See Alan Guttmacher Institute, 11 Million Teenagers 12
(1976). See generally C. Chilman, Adolescent Sexuality in
a Changing American Society (NIH Pub. No. 80-1426, 1980).

															The petitioner contends that the statute is overinclusive
because it does not allow a defense that contraceptives were used,
or that procreation was for some other reason impossible. The
petitioner does not allege, however, that he used a contraceptive,
or that pregnancy could not have resulted from the conduct with
which he was charged. But even assuming the petitioner's standing
to raise the claim of overbreadth, it is clear that a statute
recognizing the defenses he suggests would encounter difficult, if
not impossible, problems of proof.

															[ Footnote 2/11 ] See, e.g., Phipps-Yonas, Tecnage Pregnancy and
Motherhood, 50 Am.J.Orthopsychiatry 403, 412 (1980). See also
State v. Rundlett, 391 A.2d
815 , 819, n. 13, 822 (Me.); Rundlett v. Oliver, 607
F.2d 495, 502 (CA1).

															[ Footnote 2/12 ] See Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 ; see generally Orr & Prietto, supra; Jaffee,
Dynneson, & ten Bensel, supra; Chilman, supra. [ Footnote 2/13 ]

															The fact is that a gender-neutral statute would not necessarily
lead to a closer fit with the aim of reducing the problems
associated with teenage pregnancy. If both parties were equally
liable to prosecution, a female would be far less likely to
complain; the very complaint would be self-incriminating.
Accordingly, it is possible that a gender-neutral statute would
result in fewer prosecutions than the one before us.

															In any event, a state legislature is free to address itself to
what it believes to be the most serious aspect of a broader
problem.

															"[T]he Equal Protection Clause does not require that a State
must choose between attacking every aspect of a problem or not
attacking the problem at all." Dandridge v. Williams, 397 U.
S. 471 , 397 U. S.
486 -487; see also Williamson v. Lee Optical
Co., 348 U. S. 483 .

															JUSTICE BLACKMUN, concurring in the judgment.

															It is gratifying that the plurality recognizes that, "[a]t the
risk of stating the obvious, teenage pregnancies . . . have
increased dramatically over the last two decades," and "have
significant social, medical, and economic consequences for both Page 450 U. S. 482 the mother and.her child, and the State." Ante at 450 U. S. 470 (footnotes omitted). There have been times when I have wondered
whether the Court was capable of this perception, particularly when
it has struggled with the different but not unrelated problems that
attend abortion issues. See, for example, the opinions
(and the dissenting opinions) in Beal v. Doe, 432 U.
S. 438 (1977); Maher v. Roe, 432 U.
S. 464 (1977); Poelker v. Doe, 432 U.
S. 519 (1977); Harris v. McRae, 448 U.
S. 297 (1980); Williams v. Zbaraz, 448 U.
S. 358 (1980); and today's opinion in H.L. v.
Matheson, ante p. 450 U. S.
389 .

															Some might conclude that the two uses of the criminal sanction
-- here flatly to forbid intercourse in order to forestall teenage
pregnancies, and, in Matheson, to prohibit a physician's
abortion procedure except upon notice to the parents of the
pregnant minor -- are vastly different proscriptions. But the basic
social and privacy problems are much the same. Both Utah's statute
in Matheson and California's statute in this case are
legislatively created tools intended to achieve similar ends and
addressed to the same societal concerns: the control and direction
of young people's sexual activities. The plurality opinion
impliedly concedes as much when it notes that "approximately half
of all teenage pregnancies end in abortion," and that "those
children who are born" are "likely candidates to become wards of
the State," Ante at 450 U. S. 471 ,
and n. 6.

															I, however, cannot vote to strike down the California statutory
rape law, for I think it is a sufficiently reasoned and
constitutional effort to control the problem at its inception. For
me, there is an important difference between this state action and
a State's adamant and rigid refusal to face, or even to recognize,
the "significant . . consequences" -- to the woman -- of a forced
or unwanted conception. I have found it difficult to rule
constitutional, for example, state efforts to block, at that later
point, a woman's attempt to deal with the enormity of the problem
confronting her, just as I have rejected state efforts to prevent
women from rationally taking Page 450 U. S. 483 steps to prevent that problem from arising. See, e.g., Carey
v. Population Services International, 431 U.
S. 678 (1977). See also Griswold v.
Connecticut, 381 U. S. 479 (1965). In contrast, I am persuaded that, although a minor has
substantial privacy rights in intimate affairs connected with
procreation, California's efforts to prevent teenage pregnancy are
to be viewed differently from Utah's efforts to inhibit a woman
from dealing with pregnancy once it has become an
inevitability. Craig v. Boren, 429 U. S. 190 (1976), was an opinion which, in large part, I joined, id. at 429 U. S. 214 .
The plurality opinion in the present case points out, ante at 450 U. S.
468 -469, the Court's respective phrasings of the
applicable test in Reed v. Reed, 404 U. S.
71 , 404 U. S. 76 (1971), and in Craig v. Boren, 429 U.S. at 429 U. S. 197 .
I vote to affirm the judgment of the Supreme Court of California
and to uphold the State's gender-based classification on that test
and as exemplified by those two cases and by Schlesinger v.
Ballard, 419 U. S. 498 (1975); Weinberger v. Wiesenfeld, 420 U.
S. 636 (1975); and Kahn v. Shevin, 416 U.
S. 351 (1974).

															I note also that § 261.5 of the California Penal Code is just
one of several California statutes intended to protect the
juvenile. JUSTICE STEWART, in his concurring opinion, appropriately
observes that § 261.5 is

															"but one part of a broad statutory scheme that protects all
minors from the problems and risks attendant upon adolescent sexual
activity." Ante at 450 U. S.
477 .

															I think too that it is only fair, with respect to this
particular petitioner, to point out that his partner, Sharon,
appears not to have been an unwilling participant in at least the
initial stages of the intimacies that took place the night of June
3, 1978. * Petitioner's and
Sharon's nonacquaintance Page 450 U. S. 484 with each other before the incident: their drinking; their
withdrawal from the others of the group; their foreplay, in which
she willingly participated and seems to have encouraged; Page 450 U. S. 485 and the closeness of their ages (a difference of only one year
and 18 days) are factors that should make this case an unattractive
one to prosecute at all, and especially to prosecute Page 450 U. S. 486 as a felony, rather than as a misdemeanor chargeable under §
261.5. But the State has chosen to prosecute in that Page 450 U. S. 487 manner, and the facts, I reluctantly conclude, may fit the
crime. Page 450 U. S. 488 * Sharon at the preliminary hearing testified as follows:

															"Q [By the Deputy District Attorney]. On June the 4th, at
approximately midnight -- midnight of June the 3rd, were you in
Rohnert Park?"

															"A [by Sharon]. Yes."

															"Q. Is that in Sonoma County?"

															"A. Yes."

															"Q. Did anything unusual happen to you that night in Rohnert
Park?"

															"A. Yes."

															"Q. Would you briefly describe what happened that night? Did you
see the defendant that night in Rohnert Park?"

															"A. Yes."

															"Q. Where did you first meet him?"

															"A. At a bus stop."

															"Q. Was anyone with you?"

															"A. My sister."

															"Q. Was anyone with the defendant?"

															"A. Yes."

															"Q. How many people were with the defendant?"

															"A. Two."

															"Q. Now, after you met the defendant, what happened?"

															"A. We walked down to the railroad tracks."

															"Q. What happened at the railroad tracks?"

															"A. We were drinking at the railroad tracks and we walked over
to this bush and he started kissing me and stuff, and I was kissing
him back, too, at first. Then, I was telling him to stop -- "

															"Q. Yes."

															"A. -- and I was telling him to slow down and stop. He said,
'Okay, okay.' But then he just kept doing it. He just kept doing
it, and then my sister and two other guys came over to where we
were and my sister said -- told me to get up and come home. And
then I didn't -- "

															"Q. Yes."

															"A. -- and then my sister and -- "

															"Q. All right."

															"A. -- David, one of the boys that were there, started walking
home, and we stayed there, and then later -- "

															"Q. All right."

															"A. -- Bruce left Michael, you know."

															"The Court: Michael being the defendant?"

															"The Witness: Yeah. We was laying there and we were kissing each
other, and then he asked me if I wanted to walk him over to the
park; so we walked over to the park and we sat down on a bench and
then he started kissing me again, and we were laying on the bench.
And he told me to take my pants off."

															"I said, 'No,' and I was trying to get up and he hit me back
down on the bench, and then I just said to myself, 'Forget it,' and
I let him do what he wanted to do, and he took my pants off and he
was telling me to put my legs around him and stuff -- "

															"Q. Did you have sexual intercourse with the defendant?"

															"A. Yeah."

															"Q. He did put his penis into your vagina?"

															"A. Yes."

															"Q. You said that he hit you?"

															"A. Yeah."

															"Q. How did he hit you?"

															"A. He slugged me in the face."

															"Q. With what did he slug you?"

															"A. His fist."

															"Q. Where abouts in the face?"

															"A. On my chin."

															"Q. As a result of that, did you have any bruises or any kind of
an injury?"

															"A. Yeah."

															"Q. What happened?"

															"A. I had bruises."

															"The Court: Did he hit you one time or did he hit you more than
once?"

															"The Witness: He hit me about two or three times." * * * * "Q. Now, during the course of that evening, did the defendant
ask you your age?"

															"A. Yeah."

															"Q. And what did you tell him?"

															"A. Sixteen."

															"Q. Did you tell him you were sixteen?"

															"A. Yes."

															"Q. Now, you said you had been drinking, is that correct?"

															"A. Yes."

															"Q. Would you describe your condition as a result of the
drinking?"

															"A. I was a little drunk."

															App. 20-23.

															CROSS-EXAMINATION

															"Q. Did you go off with Mr. M. away from the others?"

															"A. Yeah."

															"Q. Why did you do that?"

															"A. I don't know. I guess I wanted to."

															"Q. Did you have any need to go to the bathroom when you were
there."

															"A. Yes."

															"Q. And what did you do?"

															"A. Me and my sister walked down the railroad tracks to some
bushes and went to the bathroom."

															"Q. Now, you and Mr. M., as I understand it, went off into the
bushes, is that correct?"

															"A. Yes."

															"Q. Okay. And what did you do when you and Mr. M. were there in
the bushes?"

															"A. We were kissing and hugging."

															"Q. Were you sitting up?"

															"A. We were laying down."

															"Q. You were lying down. This was in the bushes?"

															"A. Yes."

															"Q. How far away from the rest of them were you?"

															"A. They were just bushes right next to the railroad tracks. We
just walked off into the bushes; not very far." * * * * "Q. So your sister and the other two boys came over to where you
were, you and Michael were, is that right?"

															"A. Yeah."

															"Q. What did they say to you, if you remember?"

															"A. My sister didn't say anything. She said, 'Come on, Sharon,
let's go home.'"

															"Q. She asked you to go home with her?"

															"A. (Affirmative nod.)"

															"Q. Did you go home with her?"

															"A. No."

															"Q. You wanted to stay with Mr. M.?"

															"A. I don't know."

															"Q. Was this before or after he hit you?"

															"A. Before." * * * * "Q. What happened in the five minutes that Bruce stayed there
with you and Michael?"

															"A. I don't remember."

															"Q. You don't remember at all?"

															"A. (Negative head shake.)"

															"Q. Did you have occasion at that time to kiss Bruce?"

															"A. Yeah."

															"Q, You did? You were kissing Bruce at that time?"

															"A. (Affirmative nod.)"

															"Q. Was Bruce kissing you?"

															"A. Yes."

															"Q. And were you standing up at this time?"

															"A. No, we were sitting down."

															"Q. Okay, so at this point in time, you had left Mr, M. and you
were hugging and kissing with Bruce, is that right?"

															"A. Yeah."

															"Q. And you were sitting up."

															"A. Yes,"

															"Q. Was your sister still there then?"

															"A. No. Yeah, she was at first"

															"Q. What was she doing?"

															"A. She was standing up with Michael and David,"

															"Q. Yes. Was she doing anything with Michael and David?"

															"A. No, I don't think so."

															"Q. Whose idea was it for you and Bruce to kiss? Did you
initiate that?"

															"A. Yes."

															"Q. What happened after Bruce left?"

															"A. Michael asked me if I wanted to go walk to the park."

															"Q. And what did you say?"

															"A. I said 'Yes.'"

															"Q. And then what happened?"

															"A. We walked to the park," * * * * "Q. How long did it take you to get to the park?"

															"A. About ten or fifteen minutes."

															"Q. And did you walk there?"

															"A. Yes."

															"Q. Did Mr. M. ever mention his name?"

															"A. Yes." Id. at 27-32.

															JUSTICE BRENNAN, with whom JUSTICES WHITE and MARSHALL join,
dissenting.

															It is disturbing to find the Court so splintered on a case that
presents such a straightforward issue: whether the admittedly
gender-based classification in Cal.Penal Code Ann. 261.5 (West
Supp. 1981) bears a sufficient relationship to the State's asserted
goal of preventing teenage pregnancies to survive the "mid-level"
constitutional scrutiny mandated by Craig v. Boren, 429 U. S. 190 (1976). [ Footnote 3/1 ] Applying the
analytical framework provided by our precedents, I am convinced
that there is only one proper resolution of this issue: the
classification must be declared unconstitutional. I fear that the
plurality opinion and JUSTICES STEWART and BLACKMUN reach the
opposite result by placing too much emphasis on the desirability of
achieving the State's asserted statutory goal -- prevention of
teenage pregnancy -- and not enough emphasis on the fundamental
question of whether the sex-based discrimination Page 450 U. S. 489 in the California statute is substantially related to the
achievement of that goal. [ Footnote
3/2 ] II After some uncertainty as to the proper framework for analyzing
equal protection challenges to statutes containing gender-based
classifications, see ante at 450 U. S. 468 ,
this Court settled upon the proposition that a statute containin a
gender-based classification cannot withstand constitutional
challenge unless Page 450 U. S. 490 the classification is substantially related to the achievement
of an important governmental objective. Kirchberg v. Feenstra,
ante at 450 U. S. 459 ; Wengler v. Druggists Mutual Ins. Co., 446 U.
S. 142 , 446 U. S. 150 (1980); Califano v. Westcott, 443 U. S.
76 , 443 U. S. 85 (1979); Caban v. Mohammed, 441 U.
S. 380 , 441 U. S. 388 (1979); Orr v. Orr, 440 U. S. 268 , 440 U. S. 279 (1979); Califano v. Goldfarb, 430 U.
S. 199 , 430 U. S.
210 -211 (1977); Califano v. Webster, 430 U. S. 313 , 430 U. S.
316 -317 (1977); Craig v. Boren, supra at 429 U. S. 197 .
This analysis applies whether the classification discriminates
against males or against females. Caban v. Mohammed, supra at 441 U. S. 394 ; Orr v. Orr, supra at 440 U. S.
278 -279; Craig v. Boren, supra, at 429 U. S. 204 .
The burden is on the government to prove both the importance of its
asserted objective and the substantial relationship between the
classification and that objective. See Kirchberg v. Feenstra,
ante at 450 U. S. 461 ; Wengler v. Druggists Mutual Ins. Co., supra at 446 U. S.
151 -152; Caban v. Mohammed, supra at 441 U. S. 393 ; Craig v. Boren, supra at 429 U. S. 204 .
And the State cannot meet that burden without showing that a
gender-neutral statute would be a less effective means of achieving
that goal. Wengler v. Druggists Mutual Ins. Co., supra at 446 U. S.
151 -152; Orr v. Orr, supra, at 440 U. S. 281 ,
283. [ Footnote 3/3 ]

															The State of California vigorously asserts that the "important
governmental objective" to be served by § 261.5 is the prevention
of teenage pregnancy. It claims that its statute furthers this goal
by deterring sexual activity by males -- the class of persons it
considers more responsible for causing those pregnancies. [ Footnote 3/4 ] But even assuming that
prevention of teenage Page 450 U. S. 491 pregnancy is an important governmental objective and that it is,
in fact, an objective of § 261.5, see infra, at 450 U. S.
491 -196, California still has the burden of proving that
there are fewer teenage pregnancies under its gender-based
statutory rape law than there would be if the law were
gender-neutral. To meet this burden, the State must show that,
because its statutory rape law punishes only males, and not
females, it more effectively deters minor females from having
sexual intercourse. [ Footnote
3/5 ]

															The plurality assumes that a gender-neutral statute would be
less effective than § 261.5 in deterring sexual activity because a
gender-neutral statute would create significant enforcement
problems. The plurality thus accepts the State's assertion that

															"a female is surely less likely to report violations of the
statute if she herself would be subject to crimina prosecution. Page 450 U. S. 492 In an area already fraught with prosecutorial difficulties, 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." Ante at 450 U. S.
473 -474 (footnotes omitted). However, a State's bare
assertion that its gender-based statutory classification
substantially furthers an important governmental interest is not
enough to meet its burden of proof under Craig v. Boren. Rather, the State must produce evidence that will persuade the
court that its assertion is true. See Craig v. Boren, 429
U.S. at 429 U. S.
200 -204.

															The State has not produced such evidence in this case. Moreover,
there are at least two serious flaws in the State's assertion that
law enforcement problems created by a gender-neutral statutory rape
law would make such a statute less effective than a gender-based
statute in deterring sexual activity.

															First, the experience of other jurisdictions, and California
itself, belies the plurality's conclusion that a gender-neutral
statutory rape law "may well be incapable of enforcement." There
are now at least 37 States that have enacted gender-neutral
statutory rape laws. Although most of these laws protect young
persons (of either sex) from the sexual exploitation of older
individuals, the laws of Arizona, Florida, and Illinois permit
prosecution of both minor females and minor males for engaging in
mutual sexual conduct. [ Footnote
3/6 ] California has introduced no evidence that those States
have been handicapped Page 450 U. S. 493 by the enforcement problems the plurality finds so persuasive.
[ Footnote 3/7 ] Surely, if those
States could provide such evidence, we might expect that California
would have introduced it.

															In addition, the California Legislature in recent years has
revised other sections of the Penal Code to make them
gender-neutral. For example, Cal.Penal Code Ann. §§ 286(b)(1) and
288a(b)(1) (West Supp. 1981), prohibiting sodomy and oral
copulation with a "person who is under 18 years of age," could
cause two minor homosexuals to be subjected to criminal sanctions
for engaging in mutually consensual conduct. Again, the State has
introduced no evidence to explain why a gender-neutral statutory
rape law would be any more difficult to enforce than those
statutes.

															The second flaw in the State's assertion is that, even assuming
that a gender-neutral statute would be more difficult to enforce,
the State has still not shown that those enforcement problems would
make such a statute less effective than a gender-based statute in
deterring minor females from engaging in sexual intercourse.
[ Footnote 3/8 ] Common sense,
however, suggests Page 450 U. S. 494 that a gende-neutral statutory rape law is potentially a rgeater
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. Even if fewer persons were
prosecuted under the gender-neutral law, as the State suggests, it
would still be true that twice as many persons would be subject to
arrest. The State's failure to prove that a gender-neutral law
would be a less effective deterrent than a gender-based law, like
the State's failure to prove that a gender-neutral law would be
difficult to enforce, should have led this Court to invalidate §
261.5. III Until very recently, no California court or commentator had
suggested that the purpose of California's statutory rape law was
to protect young women from the risk of pregnancy. Indeed, the
historical development of § 261.5 demonstrates that the law was
initially enacted on the premise that young women, in contrast to
young men, were to be deemed legally incapable of consenting to an
act of sexual intercourse. [ Footnote
3/9 ] Because Page 450 U. S. 495 their chastity was considered particularly precious, those young
women were felt to be uniquely in need of the State's protection.
[ Footnote 3/10 ] In contrast,
young men were assumed to Page 450 U. S. 496 be capable of making such decisions for themselves; the law
therefore did not offer them any special protection.

															It is perhaps because the gender classifiation in California's
statutory rape law was initially designed to further these outmoded
sexual stereotypes, rather than to reduce the incidence of teenage
pregnancies, that the State has been unable to demonstrate a
substantial relationship beween the classification and its newly
asserted goal. Cf. Califano v. Goldfarb, 430 U.S. at 430 U. S. 223 (STEVENS, J., concurring in judgment). But whatever the reason, the
State has not shown that Cal.Penal Cod § 261.5 is any more
effective than a gender-neutral law would be in deterring minor
females from engaging in sexual intercourse. It has therefore not
met its burden of proving that the statutory classification is
substantially related to the achievement of its asserted goal.

															I would hold that § 261.5 violates the Equal Protection Clause
of the Fourteenth Amendment, and I would reverse the judgment of
the California Supreme Court.

															[ Footnote 3/1 ]

															The California Supreme Court acknowledged, and indeed the
parties do not dispute, that Cal.Penal Code Ann. § 261.5 (West
Supp. 1981) discriminates on the basis of sex. Ante at 450 U. S. 467 .
Because petitioner is male, he faces criminal felony charges and a
possible prison term, while his female partner remains immune from
prosecution. The gender of the participants, not their relative
responsibility, determines which of them is subject to criminal
sanctions under § 2615

															As the California Supreme Court stated in People v.
Hernandez, 61 Cal. 2d
529 , 531, 393 P.2d 673, 674 (1964) (footnote omitted):

															"[E]ven in circumstances where a girl's actual comprehension
contradicts the law's presumption [that a minor female is too
innocent and naive to understand the implications and nature of her
act], the male is deemed criminally responsible for the act,
although himself young and naive and responding to advances which
may have been made to him."

															[ Footnote 3/2 ]

															None of the three opinions upholding the California statute
fairly applies the equal protection analysis this Court has so
carefully developed since Craig v. Boren, 429 U.
S. 190 (1976). The plurality opinion, for example,
focusing on the obvious and uncontested fact that only females can
become pregnant, suggests that the statutory gender discrimination,
rather than being invidious, actually ensures equality of
treatment. Since only females are subject. to a risk of pregnancy,
the plurality opinion concludes that "[a] criminal sanction imposed
solely on males . . . serves to roughly equalize' the
deterrents on the sexes." Ante at 450 U. S. 473 .
JUSTICE STEWART adopts a similar approach. Recognizing that
"females can become pregnant as the result of sexual intercourse;
males cannot," JUSTICE STEWART concludes that "[y]oung women and
men are not similarly situated with respect to the problems and
risks associated with intercourse and pregnancy," and therefore §
261.5 "is realistically related to the legitimate state
purpose of reducing those problems and risks" (emphasis added). Ante at 450 U. S. 478 , 450 U. S. 479 .
JUSTICE BLACKMUN, conceding that some limits must. be placed on a
State's power to regulate "the control and direction of young
people's sexual activities," also finds the statute constitutional. Ante at 450 U. S. 482 .
He distinguishes the State's power in the abortion context, where
the pregnancy has already occurred, from its power in the present
context, where the "problem [is] at its inception." He then
concludes, without explanation, that "the California statutory rape
law . . . is a sufficiently reasoned and constitutional effort to
control the problem at its inception." Ibid. All three of these approaches have a common failing. They
overlook the fact that the State has not met its hurden of proving
that the gender discrimination in § 261.5 is substantially related to the achievement of the State's asserted statutory goal.
My Brethren seem not to recognize that California has the burden of
proving that a gender-neutral statutory rape law would be less
effective than § 261.5 in deterring sexual activity leading to
teenage pregnancy. Because they fail to analyze the issue in these
terms, I believe they reach an unsupportable result.

															[ Footnote 3/3 ]

															Gender-based statutory rape laws were struck down in Navedo
v. Preisser, 630 F.2d 636 (CA8 1980), United State v.
Hicks, 625 F.2d 216 (CA9 1980), and Meloon v.
Helgemoe, 564 F.2d 602 (CA1 1977), cert. denied, 436
U.S. 950 (1978), precisely because the government failed to meet
this burden of proof.

															[ Footnote 3/4 ]

															In a remarkable display of sexual stereotyping, the California
Supreme Court stated:

															"The Legislature is well within its power in imposing criminal
sanctions against males alone, because they are the only persons who may physiologically cause the result which the law
properly seeks to avoid." 25 Cal. 3d
608 , 612, 601 P.2d 572, 575 (1979) (emphasis in original).

															[ Footnote 3/5 ]

															Petitioner has not questioned the State's constitutional power
to achieve its asserted objective by criminalizing consensual
sexual activity. However, I note that our cases would not foreclose
such a privacy challenge.

															The State is attempting to reduce the incidence of teenage
pregnancy by imposing criminal sanctions on those who engage in
consensual sexual activity with minor females. We have stressed,
however, that,

															"[i]f the right of privacy means anything, it is the right of
the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 453 (1972) (footnote omitted). Minors, too, enjoy a right of privacy in
connection with decisions affecting procreation. Carey v.
Population Services International, 431 U.
S. 678 , 431 U. S. 693 (1977). Thus, despite the suggestion of the plurality to the
contrary, ante at 450 U. S. 472 -473, n. 8, it is not settled that a State
may rely on a pregnancy prevention justification to make consensual
sexual intercourse among minors a criminal act.

															[ Footnote 3/6 ] See Ariz.Rev.Stat.Ann. § 13-1405 (1978); Fla.Stat. §
794.05 (1979); Ill.Rev.Stat., ch. 38, � 11-5 (1979). In addition,
eight other States permit both parties to be prosecuted when one of
the participants to a consensual act of sexual intercourse is under
the age of 16. See Kan.Stat.Ann. § 21-3503 (1974);
Mass.Gen.Laws Ann., ch. 265, § 23 (West Supp. 1981); Mich.Comp.Laws
§ 750.13 (1970); Mont.Code Ann. §§ 45-5-501 to 45-5-503 (1979);
N.H.Rev.Stat. § 632-A:3 (Supp. 1979); Tenn.Code Ann. § 39-3705 (4)
(Supp. 1979); Utah Code Ann. § 76-5-401 (Supp. 1979); Vt.Stat.Ann.,
Tit. 13, § 3252(3) (Supp. 1980).

															[ Footnote 3/7 ]

															There is a logical reason for this. In contrast to laws
governing forcible rape, statutory rape laws apply to consensual
sexual activity. Force is not an element of the crime. Since a
woman who consents to an act of sexual intercourse is unlikely to
report her partner to the police -- whether or not she is subject
to criminal sanctions -- enforcement would not be undermined if the
statute were to be made gender-neutral. See 450
U.S. 464 fn3/8|>n. 8, infra. [ Footnote 3/8 ]

															As it is, § 261.5 seems to be an ineffective deterrent of sexual
activity. Cf. Carey v. Population Services International,
supra at 431 U. S. 695 (substantial reason to doubt that limiting access to contraceptives
will substantially discourage early sexual behavior). According to
statistics provided by the State, an average of only 61 juvenile
males and 352 adult males were arrested for statutory rape each
year between 1975 and 1978. Brief for Respondent 19. During each of
those years, there were approximately one million Californian girls
between the ages of 13-17. Cal. Dept. of Finance, Population
Projections for California Counties, 1975-2020, with Age/Sex Detail
to 2000, Series 150 (1977). Although the record in this case does
not indicate the incidence of sexual intercourse involving those
girls during that period, the California State Department of Health
estimates that there were almost 50,000 pregnancies among
13-to-17-year-old girls during 1976. Cal.Dept. of Health, Birth and
Abortion Records, and Physician Survey of Office Abortions (1976).
I think it is fair to speculate from this evidence that a
comparison of the number of arrests for statutory rape in
California with the number of acts of sexual intercourse involving
minor females in that State would likely demonstrate to a male
contemplating sexual activity with a minor female that his chances
of being arrested are reassuringly low. I seriously question,
therefore, whether § 261.5, as enforced, has a substantial
deterrent effect . See Craig v. Boren, 429 U.S. at 429 U. S. 214 (STEVENS, J., concurring).

															[ Footnote 3/9 ]

															California's statutory rape law had its origins in the Statutes
of Westminster enacted during the reign of Edward I at the close of
the 13th century (3 Edw. 1, ch. 13 (1275); 13 Edw. 1, ch. 34
(1285)). The age of consent at that time was 12 years, reduced to
10 years in 1576 (18 Eliz. 1, ch. 7, § 4). This statute was part of
the common law brought to the United States. Thus, when the first
California penal statute was enacted, it contained a provision
(1850 Cal.Stats., ch. 99, § 47, p. 234) that proscribed sexual
intercourse with females under the age of 10. In 1889, the
California statute was amended to make the age of consent 14 (1889
Cal.Stats., ch.191, § 1, p. 223). In 1897, the age was advanced to
16 (1897 Cal.Stats., ch. 139, § 1, p. 201). In 1913, it was fixed
at 18, where it now remains (1913 Cal.Stats., ch. 122, § 1, p.
212).

															Because females generally have not reached puberty by the age of
10, it is inconceivable that a statute designed to prevent
pregnancy would be directed at acts of sexual intercourse with
females under that age.

															The only legislative history available, the draftsmen's notes to
the Penal Code of 1872, supports the view that the purpose of
California's statutory rape law was to protect those who were too
young to give consent. The draftsmen explained that the

															"[statutory rape] provision embodies the well settled rule of
the existing law; that a girl under ten years of age is incapable
of giving any consent to an act of intercourse which can reduce it
below the grade of rape."

															Code Commissioners' note, subd. 1, following Cal.Penal Code §
261, p. 111 (1st ed. 1872). There was no mention whatever of
pregnancy prevention. See also Note, Forcible and
Statutory Rape: An Exploration of the Operation and Objectives of
the Consent Standard, 62 Yale L.J. 55, 74-76 (1952).

															[ Footnote 3/10 ]

															Past decisions of the California courts confirm that the law was
designed to protect the State's young females from their own
uninformed decisionmaking. In People v. Verdereen, 106
Cal. 211, 214-215, 39 P. 607, 608-609 (1895), for example, the
California Supreme Court stated:

															"The obvious purpose of [the statutory rape law] is the
protection of society by protecting from violation the virtue of
young and unsophisticated girls. . . . It is the insidious approach
and vile tampering with their persons that primarily undermines the
virtue of young girls, and eventually destroys it; and the
prevention of this, as much as the principal act, must undoubtedly
have been the intent of the legislature."

															As recently as 1964, the California Supreme Court decided People v. Hernandez, 61 Cal. 2d at 531, 393 P.2d at 674,
in which it stated that the under-age female

															"is presumed too innocent and naive to understand the
implications and nature of her act. . . . The law's concern with
her capacity or lack thereof to so understand is explained in part
by a popular conception of the social, moral and personal values
which are preserved by the abstinence from sexual indulgence on the
part of a young woman. An unwise disposition of her sexual favor is
deemed to do harm both to herself and the social mores by which the
community's conduct patterns are established. Hence, the law of
statutory rape intervenes in an effort to avoid such a
disposition."

															It was only in deciding Michael M. that the California
Supreme Court decided, for the first time in the 130-year history
of the statute, that pregnancy prevention had become one of the
purposes of the statute.

															JUSTICE STEVENS, dissenting.

															Local custom and belief -- rather than statutory laws of
venerable but doubtful ancestry -- will determine the volume of
sexual activity among unmarried teenagers. [ Footnote 4/1 ] The empirical Page 450 U. S. 497 evidence clted by the plurality demonstrates the futility of the
notion that a statutory prohibition will significantly affect the
volume of that activity or provide a meaningful solution to the
problems created by it. [ Footnote
4/2 ] Nevertheless, as a matter of constitutional power, unlike
my Brother BRENNAN, see ante at 450 U. S. 491 ,
n. 5, I would have no doubt about the validity of a state law
prohibiting all unmarried teenagers from engaging in sexual
intercourse. The societal interests in reducing the incidence of
venereal disease and teenage pregnancy are sufficient, in my
judgment, to justify a prohibition of conduct that increases the
risk of those harms. [ Footnote
4/3 ]

															My conclusion that a nondiscriminatory prohibition would be
constitutional does not help me answer the question whether a
prohibition applicable to only half of the joint participants in
the risk-creating conduct is also valid. It cannot be true that the
validity of a total ban is an adequate justification for a
selective prohibition; otherwise, the constitutional objection to
discriminatory rules would be meaningless. The question in this
case is whether the difference between males and females justifies
this statutory discrimination based entirely on sex. [ Footnote 4/4 ] Page 450 U. S. 498 The fact that the Court did not immediately acknowledge that the
capacity to become pregnant is what primarily differentiates the
female from the male [ Footnote 4/5 ]
does not impeach the validity of the plurality's newly found
wisdom. I think the plurality is quite correct in making the
assumption that the joint act that this law seeks to prohibit
creates a greater risk of harm for the female than for the male.
But the plurality surely cannot believe that the risk of pregnancy
confronted by the female -- any more than the risk of venereal
disease confronted by males as well a females -- has provided an
effective deterrent to voluntary female participation in the
risk-creating conduct. Yet the plurality' decision seems to rest on
the assumption that the California Legislature acted on the basis
of that rather fanciful notion. Page 450 U. S. 499 In my judgment, the fact that a class of persons is especially
vulnerable to a risk that a statute is designed to avoid is a
reason for making the statute applicable to that class. The
argument that a special need for protection provides a rational
explanation for an exemption is one I simply do not comprehend.
[ Footnote 4/6 ]

															In this case, the fact that a female confronts a greater risk of
harm than a male is a reason for applying the prohibition to her --
not a reason for granting her a license to use her own judgment on
whether or not to assume the risk. Surely, if we examine the
problem from the point of view of society's interest in preventing
the risk-creating conduct from occurring at all, it is irrational
to exempt 50% of the potential violators. See dissent of
JUSICE BRENNAN, ante at 450 U. S.
493 -494. And, if we view the government's interest as
that of a parens patriae seeking to protect its subjects
from harming themselves, the discrimination is actually perverse.
Would a rational parent making rules for the conduct of twin
children of opposite sex simultaneously forbid the son and
authorize the daughter to engage in conduct that is especially
harmful to the daughter? That is the effect of this statutory
classification.

															If pregnancy or some other special harm is suffered by one of
the two participants in the prohibited act, that special harm no
doubt would constitute a legitimate mitigating factor in deciding
what, if any, punishment might be appropriate in a given case. But
from the standpoint of fashioning a general preventive rule -- or,
indeed, in determining appropriate punishment when neither party in
fact has suffered any special Page 450 U. S. 500 harm -- I regard a total exemption for the members of the more
endangered class as utterly irrational.

															In my opinion, the only acceptable justification for a general
rule requiring disparate treatment of the two participants in a
joint act must be a legislative judgment that one is more guilty
than the other. The risk-creating conduct that this statute is
designed to prevent requires the participation of two persons --
one male and one female. [ Footnote
4/7 ] In many situations, it is probably true that one is the
aggressor and the other is either an unwilling, or at least a less
willing, participant in the joint act. If a statute authorized
punishment of only one participant and required the prosecutor to
prove that that participant had been the aggressor, I assume that
the discrimination would be valid. Although the question is less
clear, I also assume, for the purpose of deciding this case, that
it would be permissible to punish only the male participant if one
element of the offense were proof that he had been the aggressor,
or at least in some respects the more responsible participant, in
the joint act. The statute at issue in this case, however, requires
no such proof. The question raised by this statute is whether the
State, consistently with the Federal Constitution, may always
punish the male and never the female when they are equally
responsible or when the female is the more responsible of the
two.

															It would seem to me that an impartial lawmaker could give only
one answer to that question. The fact that the California
Legislature has decided to apply its prohibition only to Page 450 U. S. 501 the male may reflect a legislative judgment that, in the typical
case the male is actually the more guilty party. Any such judgment
must, in turn, assume that the decision to engage in the
risk-creating conduct is always -- or at least typically -- a male
decision. If that assumption is valid, the statutory classification
should also be valid. But what is the support for the assumption?
It is not contained in the record of this case or in any
legislative history or scholarly study that has been called to our
attention. I think it is supported to some extent by traditional
attitudes toward male-female relationships. But the possibility
that such a habitual attitude may reflect nothing more than an
irrational prejudice makes it an insufficient justification for
discriminatory treatment that is otherwise blatantly unfair. For,
as I read this statute, it requires that one, and only one, of two
equally guilty wrongdoers be stigmatized by a criminal
conviction.

															I cannot accept the State's argument that the constitutionality
of the discriminatory rule can be saved by an assumption that
prosecutors will commonly invoke this statute only in cases that
actually involve a forcible rape, but one that cannot be
established by proof beyond a reasonable doubt. [ Footnote 4/8 ] That assumption implies that a State
has a legitimate interest in convicting a defendant on evidence
that is constitutionally insufficient. Of course, the State may
create a lesser-included offense that would authorize punishment of
the more guilty party, but surely the interest in obtaining
convictions on inadequate Page 450 U. S. 502 proof cannot justify a statute that punishes one who is equally
or less guilty than his partner. [ Footnote 4/9 ]

															Nor do I find at all persuasive the suggestion that this
discrimination is adequately justified by the desire to encourage
females to inform against their male partners. Even if the concept
of a wholesale informant's exemption were an acceptable enforcement
device, what is the justification for defining the exempt class
entirely by reference to sex, rather than by reference to a more
neutral criterion such as relative innocence? Indeed, if the exempt
class is to be composed entirely of members of one sex, what is
there to support the view that the statutory purpose will be better
served by granting the informing license to females, rather than to
males? If a discarded male partner informs on a promiscuous female,
a timely threat of prosecution might well prevent the precise harm
the statute is intended to minimize.

															Finally, even if my logic is faulty and there actually is some
speculative basis for treating equally guilty males and females
differently, I still believe that any such speculative
justification would be outweighed by the paramount interest in
evenhanded enforcement of the law. A rule that authorizes
punishment of only one of two equally guilty wrongdoers violates
the essence of the constitutional requirement that the sovereign
must govern impartially.

															I respectfully dissent.

															[ Footnote 4/1 ]

															"Common sense indicates that many young people will engage in
sexual activity regardless of what the New York Legislature does,
and further, that the incidence of venereal disease and premarital
pregnancy is affected by the availability or unavailability of
contraceptives. Although young persons theoretically may avoid
those harms by practicing total abstention, inevitably many will
not." Carey v. Population Services International, 431 U. S. 678 , 431 U. S. 714 (STEVENSI J., concurring in part and in judgment).

															[ Footnote 4/2 ]

															If a million teenagers became pregnant in 1976, see
ante at 450 U. S. 470 ,
n. 3, there must be countless violations of the California statute.
The statistics cited by JUSTICE BRENNAN also indicate, as he
correctly observes, that the statute "seems to be an ineffective
deterrent of sexual activity." See ante at 450 U. S.
493 -494, n. 8.

															[ Footnote 4/3 ] See Carey v. Population Services International, supra, at 431 U. S. 713 (STEVENS, J., concurring in part and in judgment).

															[ Footnote 4/4 ]

															Equal protection analysis is often said to involve different
"levels of scrutiny." It may be more accurate to say that the
burden of sustaining an equal protection challenge is much heavier
in some cases than in others. Racial classifications, which are
subjected to "strict scrutiny," are presumptively invalid because
there is seldom, if ever, any legitimate reason for treating
citizens differently because of their race. On the other hand, most
economic classifications are presumptively valid because they are a
necessary component of most regulatory programs. In cases involving
discrimination between men and women, the natural differences
between the sexes are sometimes relevant and sometimes wholly
irrelevant. If those differences are obviously irrelevant, the
discrimination should be t.reated as presumptively unlawful in the
same way that racial clasifications are presumptively unlawful. Cf. Califano v. Goldfarb, 430 U.
S. 199 , 430 U. S. 223 (STEVENS, J., concurring in judgment). But if, as in this case,
there is an apparent connection between the discrimination and the
fact that only women can become pregnant, it may be appropriate to
presume that the classification is lawful. This presumption,
however, may be overcome by a demonstration that the apparent
justification for the discrimination is illusory or wholly
inadequate. Thus, instead of applying a "mid-level" form of
scrutiny in all sex discrimination cases, perhaps the burden is
heavier in some than in others. Nevertheless, as I have previously
suggested, the ultimate standard in these, as in all other equal
protection cases, is essentially the same. See Craig v.
Boren, 429 U. S. 190 , 429 U. S.
211 -212 (STEVENS, J., concurring). Professor Cox
recently noted that, however the level of scrutiny is described, in
the final analysis,

															"the Court is always deciding whether, in its judgment, the harm
done to the disadvantaged class by the legislative classification
is disproportionate to the public purposes the measure is likely to
achieve."

															Cox, Book Review, 94 Harv.L.Rev. 700, 706 (1981).

															[ Footnote 4/5 ] See General Electric Co. v. Gilbert, 429 U.
S. 125 , 429 U. S. 162 (STEVENS, J., dissenting).

															[ Footnote 4/6 ]

															A hypothetical racial classification will illustrate my point.
Assume that skin pigmentation provides some measure of protection
against cancer caused by exposure to certain chemicals in the
atmosphere and, therefore, that white employees confront a greater
risk than black employees in certain industrial settings. Would it
be rational to require black employees to wear protective clothing
but to exempt whites from that requirement? It seems to me that the
greater risk of harm to white workers would be a reason for
including them in the requirement -- not for granting them an
exemption.

															[ Footnote 4/7 ]

															In light of this indisputable biological fact, I find somewhat
puzzling the California Supreme Court's conclusion, quoted by the
plurality, ante at 450 U. S. 467 ,
that males "are the only persons who may physiologically
cause the result which the law properly seeks to avoid." 25 Cal. 3d
608 , 612, 601 P.2d 572, 575 (1979) (emphasis in original).
Presumably, the California Supreme Court was referring to the
equally indisputable biological fact that only females may become
pregnant. However, if pregnancy results from sexual intercourse
between two willing participants -- and the California statute is
directed at such conduct -- I would find it difficult to conclude
that the pregnancy was "caused" solely by the male participant.

															[ Footnote 4/8 ]

															According to the State of California:

															"The statute is commonly employed in situations involving force,
prostitution, pornography, or coercion due to status relationships,
and the state's interest in these situations is apparent."

															Brief for Respondent 3. See also id. at 23-25. The
State's interest in these situations is indeed apparent, and
certainly sufficient to justify statutory prohibition of forcible
rape, prostitution, pornography, and nonforcible, but nonetheless
coerced, sexual intercourse. However, it is not at all apparent to
me how this state interest can justify a statute not specifically
directed to any of these offenses.

															[ Footnote 4/9 ]

															Both JUSTICE REHNQUIST and JUSTICE BLACKMUN apparently attach
significance to the testimony at the preliminary hearing indicating
that the petitioner struck his partner. See opinion of
REHNQUIST, J., ante at 450 U. S. 467 ;
opinion of BLACKMUN, J., ante at 450 U. S.
483 -488, n. In light of the fact that the petitioner
would be equally guilty of the crime charged in the complaint
whether or not that testimony is true, it obviously has no bearing
on the legal question presented by this case. The question is not
whether "the facts . . . fit the crime," opinion of BLACKMUN, J., ante at 450 U. S. 487 -- that is a question to be answered at trial -- but rather,
whether the statute defining the crime fits the constitutional
requirement that justice be administered in an evenhanded
fashion.

Summary: The Supreme Court upheld a California statute that criminalizes sexual intercourse between a male and a female under the age of 18, known as "statutory rape." The Court ruled that the law does not violate the Equal Protection Clause of the Fourteenth Amendment, as gender-based classifications are not "inherently suspect." The Court found that the statute serves the legitimate state interest of preventing teenage pregnancies and protecting young women from the physical, emotional, and psychological consequences of pregnancy. The Court also rejected the argument that the statute is discriminatory or underinclusive and emphasized that the Equal Protection Clause does not require identical treatment for all persons.