Equal Protection for Mutants--A Confluence of Unfortunate Events

With my Constitutional Law final exam, a petition for law review revolving around 14th Amendment rights, and the third X-Men movie all coming out at the same time, I was inspired to determine the constitutional status of the rights of mutants in this country. Unfortunately, that inspiration coincided with the petitioning process, during which any thought of outside communication relating to any subject even remotely connected to the general area of constitutional law would result in immediate disqualification, followed by painful death or dismemberment. Now that I'm free to give rein to that inspiration, it is of course gone, but I liked the idea so much that I'm going to discuss it anyway.

(Disclaimer: I am a nerd, yes. But my inner nerditude was never expressed through compulsive comic consumption, so I can only work from the movies, and therefore apologize for any missed facts relating to comic book #136, page 12, panel 4 et seq., which might destroy my whole argument. Also, I will omit discussion of the basic plot points of the 3rd movie that may have spoilerizing effects; by and large, I will try to keep my analysis consistent with new characteristics revealed in that movie, but avoiding spoilage is a higher priority than consistency.)

The first question is what effects laws involving mutants might have. In the first movie, the government attempted to enact a mutant registration act, and subsequent movies suggested that the government might also attempt to deprive mutants of the ability to mutate, or the right to use the mutation. I will examine each in turn.

The clearest point of challenge to a mutant registration act would be the Equal Protection Clause of the 14th Amendment. The first question in Equal Protection analysis is, of course, what group is being classified and is it a suspect class? Here, the group being classified is 'mutants.' We have no precedent as to what level of scrutiny applies to classifications involving mutants, so we have to look to some tools the Supreme Court has traditionally used to determine that. First, constitutional history does not apply, as this is a classification based on race. But it appears that mutancy, like race and gender, is an immutable status. It further appears that mutants have suffered a history of discrimination in this country, to the point where the children may be unsafe if not spirited off to a purported 'school for the gifted.' This may, however, be based on real differences, such as the ability to derail trains or cause massive fires with a mere flick of the wrist, to which Congress could appropriately respond. Finally, courts sometimes consider whether the group being classified is a discrete and insular minority, per Carolene Products footnote 4. In the case of mutants, it is not clear that they are either discrete or insular, despite Professor Xavier's apparent attempts to achieve insularity. Mutants can for the most part walk among us, fit in with society, without us knowing that they are in fact different. Further, due to their "X-"traordinary powers, mutants are in some ways better off than we ordinary humans, which might disqualify them for this status (see Romer v. Evans, Scalia, J., dissenting (arguing that, since gay people are on average comparatively wealthier than straight people, they can't possibly be discriminated against)). So, despite the immutable status of their mutations, it seems mutants are better analogized to the mentally handicapped (Cleburne) than to women or African-Americans for purposes of equal protection analysis, particularly because of the "real" differences legislatures may need to account for.

But ascertaining their status for equal protection purposes is only a first step. Since classifications involving mutants are not suspect, we apply rational basis scrutiny to the registration act. This level of scrutiny requires a legitimate government purpose, the means of achieving which are rationally related thereto. It is historically a very deferential test--that is, courts say they're applying the rational basis test, then skip the step of actually applying it, and uphold the law, saying that the justification need not be persuasive (read: make sense), only that there's a hypothetical world wherein a rational legislature (read: a bunch of gyrating, mentally challenged proto-apes) might think the law is connected to (read: not so horribly unrelated that the proto-apes' brains explode when contemplating the end and the law at the same time) the imaginative, post-hoc justifications the lawyers conceived--but nevertheless courts have held that bare dislike of a politically unpopular group cannot constitute a legitimate end. So what purpose might the Mutant Registration Act serve? Well, mutants can be dangerous (see, e.g., Magneto (attempting to kill all humanity). But see Professor Xavier (striving for a world in which humans and mutants live in harmony)) in a way similar to guns, which we also require people to register, unless they buy them at gun shows, in which case it's cool. But guns are inherently dangerous (contra NRA, Charlton Heston ("[M]y cold dead hands.")) whereas mutants may not be. It seems the question is, does a bare fear of, unlike a bare dislike of, a politically unpopular group constitute a rational basis? The fear itself seems like it may well be rational, but dislike might be rational as well and yet see the law struck down (see Moreno (holding that a law disadvantaging hippies is unconstitutional)). It's a difficult issue, but courts are always happy to abdicate review by invoking the rational basis test, so the law would probably be upheld.

It is trickier when we approach laws that would prevent or ban future mutations. They would not only have to pass the rational basis test under equal protection analysis (which would probably come out the same way as above) but would also be subject to review under substantive due process doctrine. The threshold question is whether the right to mutate is a fundamental right. The lack of historical support would be relevant--it hardly seems implicit in the concept of ordered liberty to allow mutants to mutate. The Carolene Products analysis is the same as above. We would, of course, have to analyze how European countries respond to mutants, because evolving norms toward toleration might be relevant to determining this falls under the right to privacy. Indeed, if we framed this not as the right to mutate, but as a mutation (mutated?) facet of the fundamental right to privacy, we may yet see strict scrutiny for laws depriving mutants of the right to mutate freely. Strict scrutiny would likely see the law struck down, because it has tended to be strict only in theory, but fatal in fact. A compelling government justification for banning mutation could only be found in ensuring the health of the populace, but banning all mutations--as opposed to, say, harming people while mutated or through mutating--hardly seems the least restrictive means to achieve it. It would in fact prevent mutants from using their mutations for the benefit of society. A straightforward ban would also seem unfair to those mutants whose mutations render them unable to fit into normal society (for example, Mystique would have to mutate in order to fit in, but in doing so would violate an anti-mutation law).

It is, indeed, a difficult issue. I think courts would generally uphold laws classifying mutants, at least as long as they weren't too blatantly based on dislike. Of course, there is another option--under certain, bold, right-thinking executives, we could declare the mutants a terrorist menace, deprived of civil rights and access to courts in the first place. In that way, we could prevent activist judges from creating new, weird, constitutional "freedoms" that destroy America for the rest of us by, um, by helping people we want to hurt. Or something. In any event, it wouldn't be an issue, and I'm sure all the mutants would be happy at Gitmo. We'd just have to lock up the ones who can fly, tag the ones who can change shape, kill the ones that can teleport (it's a crime, by the way, that Nightcrawler wasn't in the 3rd movie), build the whole thing out of plastic, and avoid the ones with adamantium coming out through their knuckles in horribly painful ways. But if they did somehow get to the courts, we could just have it thrown out on national security grounds, because, y'know, stuff like that is classified.