| Michael M. v. Superior Court
(No. 79-1344)
25 Cal.3d 608, 601 P.2d 572, affirmed. |
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| Syllabus
| Opinion
[ Rehnquist ] | Concurrence
[ Stewart ] | Concurrence
[ Blackmun ] | Dissent
[ Brennan ] | Dissent
[ Stevens ] |
| HTML version
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Michael M. v. Superior Court
CERTIORARI TO THE SUPREME COURT OF CALIFORNIA
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. [n1] The empirical [p497] 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. [n2] Nevertheless, as a matter of constitutional power, unlike my Brother BRENNAN, see ante at 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. [n3]
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. [n4] [p498]
The fact that the Court did not immediately acknowledge that the capacity to become pregnant is what primarily differentiates the female from the male [n5] 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. [p499]
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. [n6]
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 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 [p500] 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. [n7] 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 [p501] 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. [n8] 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 [p502] proof cannot justify a statute that punishes one who is equally or less guilty than his partner. [n9]
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.
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, 714 (STEVENSI J., concurring in part and in judgment).
2. If a million teenagers became pregnant in 1976, see ante at 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 493-494, n. 8.
3. See Carey v. Population Services International, supra, at 713 (STEVENS, J., concurring in part and in judgment).
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, 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, 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).
5. See General Electric Co. v. Gilbert, 429 U.S. 125, 162 (STEVENS, J., dissenting).
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.
7. In light of this indisputable biological fact, I find somewhat puzzling the California Supreme Court's conclusion, quoted by the plurality, ante at 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.
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.
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 467; opinion of BLACKMUN, J., ante at 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 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.
