October 22, 2005

ORIN KERR NOTES a Kansas Supreme Court decision holding that treating same-sex conduct differently from heterosexual conduct for purposes of statutory rape laws violates Equal Protection.

If this case winds up in the Supreme Court it will be interesting to see how the Court resolves the tension with the Michael M. decision, which held that subjecting men, but not women, to criminal liability for underage sex does not violate the Equal Protection clause because, essentially, men don’t get pregnant. Bonus points to the reader who first spots a law review article arguing that Equal Protection permits treating homosexual activity more favorably than heterosexual activity, but not the reverse, because there’s no pregnancy risk . . . .

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