Attempting to respond only to the first paragraph of James Blumstein's very
thoughtful posting (see below -- I don't have time to respond to the rest,
which also raises very valuable points):
Indeed, I started wondering about Michael M v Sup Ct after I sent my earlier
posting about Lawrence and Limon, although Michael M and Limon raise
somewhat distinct issues (Michael M: whether boy but not girl having sex
with each other can be punished when of same ages; Limon: whether boy but
not girl can be subjected to radically different punishments for having sex
with a younger boy).
Another possible ground to distinguish Michael M (which at any rate I think
is blatantly inconsistent with both previous and later sex discrimination
rulings), is that, as I recall, the key justification for treating boys and
girls differently in consensual statutory rape, was that girls but not boys
get pregnant, "nature's (possible) punishment" of the girl thus "balancing
out" a governmental punishment applied only to the boy. That obviously
doesn't apply to a same-sex encounter. And before someone suggests that the
risk of HIV transmission might justify disfavoring age-differential gay sex
as compared to equally age-differential straight sex, note that HIV (of
course) can be and is also transmitted by straight sex, and indeed, I
understand from recent news reports that the most rapidly growing risk group
for HIV is now young women (especially minority women) who contract it in
heterosexual encounters.
Lest there be any confusion, I do not endorse either type of "nature's
punishment" argument. Nor did the Michael M Court use such terminology. I
am just paraphrasing with some intentional sarcasm and irony.
Recalling the realpolitik voting line-ups on the Supreme Court, Michael M
was a 5-4 decision with Justice Stewart in the majority and Blackmun
concurring only in the judgment. O'Connor replaced Stewart later in 1981
and in 1982, wrote the 5-4 decision in Miss. U. of Women v Hogan, greatly
strengthening (in practice, if not in theory) scrutiny of sex
discrimination. Hogan is one of the cases that I find irreconcilable with
Michael M, as are later cases, like JEB v Alabama (1994) (per Blackmun, J)
and US v Virginia (1996). On the other hand, Nguyen v INS (2001) is another
5-4 setback for sex equality, again blatantly inconsistent with the others.
Being an eternal optimist, I would just hope the Supremes eventually
overrule Michael M (and Nguyen for that matter). I agree that as long as it
remains on the books, the Kansas and other courts may find it a convenient
excuse to uphold anti-gay "Romeo and Juliet" statutory rape laws.
Bryan Wildenthal
Thomas Jefferson School of Law
-----Original Message-----
From: Blumstein, James
To: [EMAIL PROTECTED]
Sent: 7/12/03 12:27 PM
Subject: Re: Lawrence, Limon and SDP Review Stratification
I think the application of Lawrence/Romer to disparate treatment
of heterosexual statutory rape vs. homosexual statutory rape has to come
to grips with Michael M. v. Superior Court (1981), which allowed for
punishment of males but did not provide for punishment of females in the
statutory rape context. Since Michael M. was a plurality opinion, one
way to deal with it is to say it was not a majority holding. But if the
outcome is taken as precedent, then there is a set of difficult
doctrinal issues to deal with. The most significant is that Michael M.
dealt with a gender-based classification, which is quasi-suspect and
subject to intermediate scrutiny. The concurrence in Lawrence did not
purport to treat classification based on sexual orientation as
quasi-suspect like gender... more like mental retardation under
Cleburne. The level of scrutiny issue (and its implementation) becomes
very important doctrinally.
....
