Are Superhumans a suspect class that should make use of the heightened scrutiny? If they are, then should they receive the protections that strict scrutiny would grant during a judicial review? After exhaustive research (and not just in the comic books) I came to the conclusion of “Maybe”.
Before I get blasted for hedging on this case, allow me to explain my dreaded answer of ‘Maybe’, in typical lawyer fashion. While some superheroes in the Marvel universe are hated and feared due to their innate and immutable nature (these being Inhumans and Mutants), most are not feared at all. In fact, they tend to be celebrated. Spider-man had an endorsement deal with a car company and a host of knockoff goods that people buy. Not out of fear of Spider-man but rather a kind of curiosity. Captain America is a beloved persona that has been punching Hitler and Baron Zemo since before most of the country was a twinkle in the parent’s eyes (This may change after Secret Empire but that is besides the point). Even the Fantastic Four, who after some initial fear of the Thing, have become a tourist attraction and target of the paparazzi. Looking at these, it becomes clear that superheroes as a whole are not a suspect class. That does not mean the same for the Inhumans and Mutants.
In the real world, suspect classes tend to be limited to race, alienage and other immutable aspects. Mutants in Marvel have constantly been a stand in for race since their debut in the comics with a simplistic view of Magento and Charles Xavier as the civil rights leaders opposed to each other. The use of mutants as a stand in for race gets even more clear when we realize that the Morlocks are a subculture of mutants who lack the ‘Passing Privilege’ of the more common looking mutants, making the commentary on Race and culture all the more clear.
In determining if Mutants are a suspect class, there has to be a showing that there is a history of discrimination, prejudice, and stigma. Alternatively, they can possess an Immutable or Highly Visible Trait and be politically powerless. The Morlocks are shunned and different from other mutants in that they cannot pretend to be human, due to physical deformities and the like and usually are the poster children of hatred toward mutants. With the Morlocks we can see that there history of hatred toward Mutants based upon the physical trait of mutation. It is clear that they are a suspect class based upon these factors.
Inhumans are the other group of heroes that may potentially fall under the suspect class. A lot has been made that Marvel is attempting to replace Mutants with Inhumans due to the similarities between the two. Both are generally born as “Normal” humans with no powers and nothing to identify themselves, both get their powers at a later time in life (usually around a coming of age, either puberty in the case of mutants or during the terrigenesis in Inhumans), and when the powers come there are immutable change to the person. The main way Inhumans are different from Mutants is that they choose to undergo the change, where Mutants do not have a choice. There are a number of Inhumans who never undergo the Terrigenesis and are fine with it (Karrak being the most cited example) and a number who cannot wait to undergo the Terrigenesis. The choice is where Mutants and Inhumans are different and where the crux of the differences lie. This would likely not be enough to cause Inhumans to be not a suspect class.
This leads us to the often overlooked fact of the Superhuman Registration Act, and that is that Mutants are exempt and Inhumans are not. Mutants are exempt because they already are registered under the Mutant Registration Act. That’s right! The Mutant Registration Act is in force in the Marvel Universe and has been since 1984. In fact, it has been amended multiple times to include such things as creating a reservation for Mutants, moving all mutants there and to allow them to be protected by the US Government with giant robots. For more information as to how that could have happened, stay tuned for a future post.
No matter how we slice it, Superhumans are not a specific race. While a specific race falls into the Superhuman category, it is by no means the majority of them. Captain America, Hulk, Iron Man, Ant-Man, the Wasp, Hawkeye and Black Widow are all humans. Based upon the fact that the act deals broadly, all the Government must show is that there is a rational basis for the registration of superheroes. If this law said “Only Register Inhumans” then we have a different story, but that is not what the Act stated.