Mutants and Anti-Discrimination Laws, Part Two

In the previous post we considered whether discrimination against mutants was constitutional under the Equal Protection Clause of the 14th Amendment and concluded that it probably was.  In this post we take a look at substantive due process and whether mutants are a “discrete and insular minority.”

Substantive due process rights are derived from the Due Process Clause of the 14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”  While we ordinarily think of due process as being about, well, procedural rights (e.g. the right to a hearing), substantive due process protects rights held to be fundamental to our scheme of ordered liberty or deeply rooted in American history and traditions. McDonald v. City of Chicago, 130 S. Ct. 3020, 3036 (2010).  An example of such rights that is relevant here are “the rights of ‘discrete and insular minorities’ — groups that may face systematic barriers in the political system.”  130 S. Ct. at 3101. When a law implicates such a right, the courts apply a strict scrutiny standard.

But the courts do not recognize new substantive due process rights lightly.  “Recognizing a new liberty right is a momentous step. It takes that right, to a considerable extent, outside the arena of public debate and legislative action.”  Id.  However, “[s]ometimes that momentous step must be taken; some fundamental aspects of personhood, dignity, and the like do not vary from State to State, and demand a baseline level of protection. But sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion.” Id.

So the questions are raised: are mutants a discrete and insular minority?  do they face systematic barriers in the political system?  do anti-mutant laws threaten fundamental aspects of personhood or dignity that demand a baseline level of protection?  I think the answer to all of these questions is yes.  Although anti-mutant discrimination is a relatively new phenomenon, it has existed essentially as long as mutants have.  Such discrimination is pervasive, sometimes violent, and often backed by the authority of the state.  In at least one case it has even lead to the wholesale enslavement of mutants.  The discrimination goes to the mutants’ very humanity, and there can hardly be a more fundamental aspect of personhood or dignity than that.

So while the argument under the Equal Protection Clause may be somewhat weak, I think there may be a stronger argument under the Due Process Clause.  Did any X-Men series ever address a court challenge to anti-mutant laws?  For a couple hundred thousand dollars in legal fees the X-Men could have saved everyone a lot of trouble.

12 Responses to Mutants and Anti-Discrimination Laws, Part Two

  1. In a Sociology of Sport class I took the professor made the argument that all professional athletes are freaks of nature because their skill set is so far beyond that of the average human.

    With that in mind, it would be hard to determine the difference between Michael Jordan just being really good at what he does and Dash Par from The Incredibles who holds back his powers so that his advantage isn’t so great.

    I mention all of that because someone would have to be in charge of deciding the difference between mutant and highly developed skills. The near impossibility of that is enough to say any anti-mutant laws would be a nightmare to enforce at best.

    • Mutant status could be defined as narrowly as ‘possessing the X-gene,’ which can be tested for. A broader definition would still be workable in practice, I think, because most mutants seem to have powers that are clearly beyond anything a human could ever do. Frankly most of them break the laws of physics, which seems a clear enough indication of a superpower.

      I’m not sure Dash Parr is really an issue. If mutants can’t be legally discriminated against then presumably Dash would feel comfortable using his full powers. To the extent he doesn’t because of social pressure, well, that’s unfortunate but it’s beyond the bounds of the Constitution. For example, racial discrimination is generally prohibited, but obviously private discrimination and bigotry are still common and the Constitution does not prohibit it.

  2. So far you have explained how laws against mutants would violate equal protection, but what about laws that regulate the use of mutant powers? Are those constitutional? Could Cyclops be liable if he loses his sunglasses in a residential area?

    • Do you mean special laws that apply specifically to mutant powers? It would depend on exactly how the courts decided to classify mutant status, but I think it would probably qualify for strict scrutiny. That would require a compelling state interest and a narrowly tailored law that uses the least restrictive means possible to achieve that interest. So if the compelling interest were protecting the public, then a narrowly tailored law drawn only to certain dangerous mutant powers and that was minimally restrictive (e.g., registration or licensure) could be constitutional. For example, low-powered mutants or mutants with easily controlled powers that were not a danger to the public couldn’t be swept up by the law as it would no longer be narrowly tailored to the compelling interest of public safety.

      It’s not clear to me that such a law would even be necessary, however. Existing involuntary commitment statutes allow for the commitment of people who are a danger to themselves or others, so a mutant with dangerous, uncontrolled powers could simply be locked up under existing laws. The law doesn’t need to explicitly distinguish between people who are a danger because they attack others with fists and those who attack others with retractable bone claws.

      Indeed, most (ab)uses of mutant powers would be covered under existing tort law and criminal law. Your example of Cyclops losing his sunglasses and hurting a bystander or destroying property would probably be treated as negligence or recklessness tort-wise and could fall under a whole range of crimes from destruction of property to aggravated battery to second degree murder. Some mutants may have powers so inherently dangerous that they might be subject to strict liability for their use. This would be most likely in cases where the mutant’s ability was both very powerful and difficult to control, akin to the classic examples of dynamite blasting, transporting gasoline, or keeping dangerous wild animals.

    • I think the Cyclops example would be similar to an obese person that bumps someone into an incoming train while turning around to see the train coming.

      And for the powers that are controlable, or otherwise manageable, i would expect similar (if not the same) laws as those that regulate martial arts experts, boxers, baseball players etc using their skills on civilians should apply.

      • There aren’t really any special laws regulating martial experts, boxers, etc. The story about a martial artist having to register his hands as deadly weapons is an urban legend.

  3. So would each mutant have to register and have a state official rule their power as dangerous or not, and then inform them of the laws involving that? Cyclops cannot control his powers because of brain damage, but if not for the hit on his head as a young child, those powers would be “controllable” and therefore not dangerous. Is it a matter of how well they can be controlled or how dangerous they are to the public in general?

    • I would suspect that “control” would not be differentiated based on artificial or natural means used to achieve it and that disability law would require all the necessary precedents to this. Then again, I don’t actually know much about the law… I am just an unemployed mechanical engineer.

  4. Shanya Almafeta

    Did any X-Men series ever address a court challenge to anti-mutant laws?

    As I recall, Dr. Hank McCoy tried just that, but the challenge didn’t work.

  5. Pingback: Ultimate Comics: X-Men #1, Part 2 | Law and the Multiverse

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