legislation. The instant case represents an opportunity for the Court to define, shape, limit, or even eliminate the new standard. In all events, it presents the opportunity for the Court to correct a situation which invites subjective judicial judgments and possible abuses.

Finally, as noted above, the instant case is one of first impression. Never has this Court weighed a gender-based statutory rape law against an equal protection argument. The implications of the First Circuit's Decision for all genderbased criminal statutes and for equal

protection analysis in general are de

vastating. The decision should not be

left to the Court of Appeals. The issue

is

ial and worthy of this Court's

II. THE HOLDING OF THE COURT OF
APPEALS IS IN DIRECT CON-
FLICT WITH A DECISION OF THE
SUPREME COURT OF THE STATE
OF NEW HAMPSHIRE AND WITH
THE DECISIONS OF ALL OTHER
STATE COURTS WHICH HAVE CON-
SIDERED THE QUESTION.

During the course of Respondent's

direct appeal to the New Hampshire Supreme Court, he first raised the issue of

whether RSA 632:1, I-c was violative of the Equal Protection Clause. The Court considered Respondent's argument and in a unanimous decision explicitly rejected it. State v. Meloon, supra, at 670, 671.

The New Hampshire Supreme Court does not stand alone. On the contrary, equal protection attacks against statutory rape laws have been universally rejected by

every state court considering the question.

- 21

See, e.g., People v. Mackey, 46 Cal. App. $55, 120 Cal. Rptr. 157 (1975); People v. Green, 183 Colo. 25, 514 P.2d 769 (1973); In re W.E.P., 318 A.2d 286 (D.C. App. 1974); State v. Drake, 219 N.W. 2d 492 (Iowa 1974); In re Interest of J.D.G., 498 S.W.2d 786 (Mo. 1973); State v. Elmore, 24 Or. App. 651, 546 P.2d 1117 (1976); and Flores v. State, 69 Wis. 2d 509, 230 N.W.2d 637 (1975).

The holding of the Court of Appeals

runs directly counter to that of the New Hampshire Supreme Court. It is also in conflict with the decisions of all state courts which have considered the question. It is a significant issue, and a significant conflict. It is a question of law which

has not been, but should be, settled by this Court.

Senator KENNEDY. But you talk about clarification but you also talk about eliminating it. My question is, do you not think that statutes that discriminate on the basis of sex should receive very close examination.

Judge SOUTER. I do not think there is any question about it.

Senator KENNEDY. I know my time is just rapidly going by. I mention these, Judge, because these are questions of fundamental equality and discrimination in all forms and shapes that have been, as I mentioned earlier, a matter of enormous concern and this country has experienced a lot of pain, a lot of tears, a lot of blood. I do not think the American people want to go back.

We have seen-and this is subject to many members understanding-we have seen recent judgments and decisions that have been made by the Supreme Court which many of us feel have been a significant retreat from protections for both women and minorities.

So it is important, at least for this Senator, to understand your recognition of the authority and the responsibility that we, in the Congress, have in terms of fulfilling our responsibility under the 14th amendment, clause 5, to make sure that when laws are necessary that we are going to pass them. And that we are going to have someone who is going to be sitting on the Court who is going to recognize the importance of interpreting them to deal with the problems of discrimination, and also who is going to give the adequate remedies for the enforcement of those laws.

That is why I am most interested in understanding your views about it, but I appreciate your response to these questions.

Thank you.

Judge SOUTER. I appreciate your concerns.

The CHAIRMAN. Before I yield to my colleague from Utah, I am a little confused, Judge.

Judge SOUTER. Yes, sir?

The CHAIRMAN. You say there should be a standard between strict scrutiny and rational basis.

Judge SOUTER. Well, I suppose there has got to be. It seems to me impossible to say that unless you are within those basically four categories that get the very strict scrutiny-race, alienage, national origin, fundamental rights-that there is no appropriate level of review except that bottom level of review which is reserved for basically the most garden-variety economic distinctions.

That kind of a position seems to me not to take into account the variety of the importance of the interests that fall between them. The CHAIRMAN. So there should be a middle level to define it more clearly?

Judge SOUTER There has got to be something other than just threshold level scrutiny.

The CHAIRMAN. Right.

Judge SOUTER. The tough thing is in writing-I have been saying and I will say it again-the tough thing is in finding-is in writing a test that does not have the undue flexibility in the middle. The CHAIRMAN. I thank you.

I will yield to my colleague.

Se HATCH. Thank you, Mr. Chairman.