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IT'S POSSIBLE THAT A METEORITE INFECTED with a cosmic zombie virus could impact Earth and reanimate the dead. The ice caps could melt entirely, flood the world, and spawn a new breed of Humanoid Water Serpent Mariners (with striking resemblances to Kevin Costner). Or nuclear warfare could mutate a sizable chunk of the planet’s population. Were any of these scenarios actualized, would our nation’s laws protect the mutants and zombies spawned by them from discriminatory conduct?
Maybe this question seems silly. Or maybe not?
Let’s not forget that the Supreme Court not that long ago issued Korematsu v. United States, 323 U.S. 214 (1944), which authorized the removal of people of Japanese ancestry to camps. The justification: feared wartime loyalties. Maybe now is a better time to consider anti-zombie discrimination laws before our judgements are irrevocably deluded by fear.
The Constitution’s Equal Protection Clause reads in relevant part, “No State shall … deny to any person within its jurisdiction equal protection of the laws.” An 1880 decision said the Equal Protection Clause was “designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.”
Six years later, the Court expanded the Clause’s protections, saying “[t]hese provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.” And it was in 1888 that the Supreme Court extended personhood to the fictional, corporate entity: “Under the designation of person there is no doubt that a private corporation is included.”
Whether zombies or mutants are protected by the Equal Protection Clause, therefore, naturally depends on whether they are people, as understood in the Constitution.
The easy case is mutants. A mutation – the process that creates a “mutant” – occurs whenever a gene changes. While genes may not (always) mutate to create X-Men super powers, mutations are quite common. A recent scientific study shows that mutations happen so frequently that every human being carries some unique genetic code mutation.
Zombies are trickier. A zombie is an animated corpse of a dead human being. But death is not necessarily an obstacle to legal protection. Laws govern how people, in death, can distribute property, for example, and the first, second, and fourth Geneva Conventions protect the dead from being despoiled. But there are limits: the rule against perpetuities limits after-death transfers, public health laws mandate that the dead be segregated from the living, and certain state laws require that human remains be buried or cremated soon after death.
Precedence, therefore, appears to guarantee Equal Protection of the law to mutants (i.e., virtually everyone), but there is a strong case for allowing discrimination against zombies. A zombie’s biological need to eat humans alone justifies discrimination against them. But we shouldn’t be too quick to draw lines. Even the late Antonin Scalia agreed the Korematsu decision was one of the worst in American history and one upon which no future court could ever look favorably. As a civilized nation governed by laws, it is incumbent upon us to ensure we not repeat another such tragedy of state-sponsored discrimination, even against our zombie and mutant companions.
Garrett Oppenheim is an attorney and writer with an accomplished, passionate dedication to social justice and human rights. He is the author of the novel "Hockeywood." He can be contacted at firstname.lastname@example.org.
Strauder v. West Virginia, 100 U.S. 303, 306 (1880).
Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
Pembina Consolidated Silver Mining Co. v. Pennsylvania, 125 U.S. 181, 189 (1888).
 Blamire, John. “Mutations.” Brooklyn College. 1997-2000.
 Blue, Laura. “All Humans Are Mutants, a New Study Suggests.” Time. August 27, 2009.
 International Committee of the Red Cross. “Customary IHL- Practice Relating to Rule 113. Treatment of the Dead.” 2016.
 Revised Code of Washington 68.50.110
 Liptak, Adam. (2014, January 27). “A Discredited Supreme Court Ruling That Still, Technically, Stands.” New York Times.