Mutants and Anti-Discrimination Laws, Part One

Discrimination against superheroes, particularly mutants, is a perennial problem in the Marvel universe, but there’s an argument to be made that the existing constitutional anti-discrimination framework would protect mutants.  First we consider the Equal Protection Clause of the 14th Amendment.  In a follow-up post we’ll discuss substantive due process.

The Equal Protection Clause of the 14th Amendment states that “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”  The Supreme Court has held that “[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest….The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985).

The Court has also held that other classifications (sex and legitimacy of birth) are subject to a heightened standard called intermediate scrutiny.  “[W]hat differentiates sex from such nonsuspect statutes as intelligence or physical disability…is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women….Because illegitimacy is beyond the individual’s control and bears no relation to the individual’s ability to participate in and contribute to society, official discriminations resting on that characteristic are also subject to somewhat heightened review.”  473 U.S. at 440-41 (internal citations and quotations omitted).

“So far, so good,” you may be thinking.  After all, discrimination on the basis of mutant status is often based on “prejudice and antipathy” and unlikely to be rectified by legislative means because mutants are such a small minority.  Or, at the very least, mutant status is “beyond the individual’s control and bears no relation to the individual’s ability to participate in and contribute to society,” at least inasmuch as mutants are generally equal to or superior to typical humans in every way.

Alas it is not that easy.  First, unlike the problems of discrimination on the basis of race, citizenship, national origin, sex, and legitimacy, discrimination on the basis of mutation is a relatively new phenomenon, only a few decades old.  A court may be unwilling to conclude that it is a problem unlikely to be rectified by legislative means without giving the issue more time to develop.  Second, from a legal perspective mutation would indeed bear a relation to an individual’s ability to participate in and contribute to society.  For example, one could easily imagine jobs that particular mutants could do much better than a typical human.   However, let’s continue with the Cleburne case for an example of the Supreme Court declining heightened protection to a class and see if mutation fits the mold.

The Cleburne case was about discrimination against people with mental disabilities (basically the City of Cleburne had an ordinance that required a special zoning permit for the operation of a group home for the mentally disabled).  The Fifth Circuit held that mental disability was a quasi-suspect-classification due at least some heightened scrutiny, but the Supreme Court disagreed.  First, it held that mental disability was a highly variable condition requiring carefully tailored solutions not befitting the judiciary.  Id. at 442. Second, it held that cities and states were addressing mental disabilities in a way that did not demonstrate antipathy or prejudice.  Id. at 443. Third, the existence of positive legislation indicated that the mentally disabled were not politically powerless. Id. at 445. Fourth, if the Court recognized mental disability as a suspect class it would have to do the same for “a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large[, such as] the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so.” Id. at 445-46.

So we can see that while some of this decision cuts in favor of mutants (the second and third points are lacking in the case of mutants), the first and fourth points cut against them.  Mutation is indeed a highly variable condition, and arguably it is “a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary.”  Id. at 443.  And making mutation a suspect class would open a door the Supreme Court explicitly declined to open in Cleburne.  Given the Court’s current reluctance to embrace homosexuality as a suspect class, it’s questionable whether it would do so for mutants.  In the next post we’ll consider whether substantive due process offers a better argument.

6 responses to “Mutants and Anti-Discrimination Laws, Part One

  1. I know you have other posts on the subject so I’ll just share the first thought that came into my mind.

    Mutant status is not always beyond the mutants control. The Fantastic Four and Spider-Man weren’t born with their powers.

    I know they didn’t chose to get them either. But the fact that they gained the powers after birth shows that it’s possible give yourself powers.

    Let’s just look at Dr. Connors/The Lizard. He gave himself powers. On accident, but it was still something that he did to himself.

    • I guess I should explicitly say that I meant “mutant status” to refer to possession of the X-gene or other innate superpowers. Although I’m not sure the law couldn’t also extend to those who had powers thrust upon them later in life or even those who intentionally sought them out.

      Superman is an interesting case because he is, in fact, not human. The courts have never had to address the rights of sentient non-humans since there aren’t any in our world, but the law as it stands now might only protect superpowered humans. A textualist or originalist judge would say that the Framers certainly did not have non-humans in mind when they wrote the Constitution (although maybe in the Marvel 1602 continuity the Constitution would have taken mutants into account).

      • “The courts have never had to address the rights of sentient non-humans since there aren’t any in our world, but the law as it stands now might only protect superpowered humans.”

        Given the demonstrated cognitive abilities of apes, parrots, and dolphins, I’m going to have to disagree with you on the presence of sentient non-humans. Admittedly, no one has managed to convince a court that they deserve civil rights, but that does not mean they lack sentience.

        Anyway, we’re only a few decades away from having to address this in the real world. With genetic engineering progressing the way it is, I expect the first sentient non-human to file for emancipation under the 14th amendment some time around 2050.

        P.S. I love your blog.

      • Taking this out of the exclusively-X-Men context, even if one sought out superpowers, once having gained them, their status would be beyond their control. Even if they intentionally gave themselves their power– thinking here of Dr. Osborne/The Green Goblin (at least the movie version, since I haven’t actually read the Spider-Man comics)– their status as “one with superpowers” would be beyond their control once the initial operation/accident was completed, unless someone could demonstrate that the process was reversible. I think the fact that they no longer have a choice regarding their powers makes it probable that a court would find them to be part of an “immutable” mutant class just the same as those born with an X-gene.

        The other thing I was thinking about is that the “legitimate state interest” prong of the test is likely to cause a lot of problems to mutants seeking employment with the federal government. For example, one could imagine a law being passed barring mutants from having certain levels of security clearance because of the fear that exposure to national secrets has greater potentially negative consequences when in the hands of a mutant than in the hands of a non-mutant (i.e. supervillany as opposed to regular criminal activity). Here the compelling state interest would be “national security,” which seems to get a lot of ridiculous things accomplished these days.

        I’m not sure how well-thought out that example is, but I’m supposed to be studying for an evidence exam…

  2. A kind of important detail you left out was that in City of Cleburne although the court refused to consider the developmentally disabled as a suspect class, it still struck down the ordinance in questions. This was fairly inconsistent with previous rational basis jurisprudence, and has led some legal scholars to refer to this line of cases (along with Romer v. Evans and others) as Rational Basis with Bite. It’s unclear whether this doctrine will survive the Robert’s court, but if it does (and based on most continuity, the mutant question would have been raised well before) it seems that mutants will be likely to get this slightly elevated scrutiny.

  3. Pingback: Mutant Discrimination: GINA, Genetics and How Professor Xavier is Breaking the Law | Law and the Multiverse

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