X-Men and equal protection

Over at Joint Strike Weasel, there's a great discussion of the legal ramifications of mutation in the sense of the X-Men (hat tip to Jonathan Adler, formerly known as Juan Non-Volokh).

JSW contributor Ivan Ludmer begins by arguing that a law requiring mutants to register with the government could be suspect because it would depend on

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.

The next step is seeing if Congress has a rational basis for this law. After some great snarks, he concludes that it would probably be upheld. He then tackles the question of whether a law banning mutation could be upheld:

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... [I]f 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... [B]anning all mutations--as opposed to, say, [banning the] harming [of] 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.

I was disappointed that the piece never addressed the threshold question of whether mutants are human--he simply asserts that they are a racial group. Unfortunately for the author's thesis, the courts have already determined that the X-Men are not human, and thus equal protection and privacy rights may not apply. From Wikipedia's discussion of Toy Biz v. U.S.:

U.S. law distinguishes between two types of action figures for determining tariffs: dolls, which are defined to include human figures, and toys, which include "nonhuman creatures". Because duties on dolls were higher than on toys, Marvel Comics subsidiary Toy Biz argued before the U.S. Court of International Trade, that their action figures (including the X-Men and Fantastic Four) represented "nonhuman creatures" and were subject to the lower tariff rates for toys instead of the higher ones for dolls. On January 3, 2003, after examining more than 60 action figures, Judge Judith Barzilay ruled in their favor, saving Toy Biz money on future tariffs and granting reimbursement for import taxes on previous toys. [emphasis mine. Incidentally, the article itself is mostly mine, as well]

The ruling, and especially Marvel's decision to pursue it, shocked many fans and at least one comic book author. They felt that it was hypocritical to chronicle the X-Men's fight for civil rights while simultaneously lobbying for oppressive court decisions. Marvel's spin doctors argued that "A decision that the X-Men figures indeed do have 'nonhuman' characteristics further proves our characters have special, out-of-this world powers," which all observers already knew before mutants were legally reclassified.

I can only conclude that if mutants are, in fact "nonhuman creatures," they may be denied the relevant legal protections, rendering the above argument moot. Through sheer luck, however, Ludmer reaches the same conclusion by an entirely different method:

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

All is as it should be.

Categories: silly, legal, executive