Michael M. v. Superior Ct.



Equal protection permits criminalizing men who have sex with women under a certain age without also criminalizing women who engaged in sex with men under the same age.


Section 261.5 of the California Penal Code prohibited sex with a female under the age of 18 but did not prohibit sex with males under the age of 18. A 17-year-old named Michael M. was charged under this law after he had sex with a woman under age 18. He argued that the complaint should be set aside because the statute excluded males from its coverage, which meant that it violated the Equal Protection Clause, but the state courts rejected this argument.OPINIONS


  • William Hubbs Rehnquist (Author)
  • Warren Earl Burger
  • Potter Stewart
  • Lewis Franklin Powell, Jr.

The state has a significant interest in preventing teenage pregnancies, which are likely to result either in abortion or in children who become wards of the state. Teenage boys are not similarly situated to teenage girls because they are not capable of becoming pregnant. Females also are more likely than males to suffer psychological and emotional consequences from teenage sex. The state should receive great deference regarding this issue, and the connection of the law to its objective is rational.


  • William Joseph Brennan, Jr. (Author)
  • Byron Raymond White
  • Thurgood Marshall

Intermediate scrutiny is appropriate for a classification based on gender. The state could achieve the same objectives through a law that does not distinguish between male and female teenagers. This would even serve the objectives more successfully by imposing criminal penalties for teenage sex on both males and females. The current version of the law must be shown to be more effective than the gender-neutral version for it to be found constitutional.


  • John Paul Stevens (Author)

The law will not actually inhibit teenagers from engaging in sex, so the issue becomes whether they are not similarly situated such that the statute may treat them differently. The law seems to assume that the male is the more guilty party, maybe assuming that the male usually initiates the decision to have sex. But the female also should be subject to the law because she is at a greater risk. There is no evidence in the record that suggests that males are more culpable than females.


  • Potter Stewart (Author)


  • Harry Andrew Blackmun (Author)


When analyzing other types of statutes, the Court had held that gender classification is not permitted if a gender-neutral classification would be equally effective in serving the state’s purposes. There is no clear reason why a criminal statute should be viewed differently.