Gingers

Jason Mazzone

When I teach Carolene Products, I ask my students to identify who falls within the final category of footnote 4 in which the Court preserves the possibility of close judicial scrutiny of governmental classifications. This produces an interesting discussion because that portion of footnote 4 is rather complex. It says:

Nor need we enquire . . . whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

Thus the footnote is concerned with "minorities" who are both "discrete" and "insular" and also victims of "prejudice"--so that the political process breaks down and those discrete and insular minorities end up disadvantaged.

Who meets those conditions, I ask?

The point of the exercise is to have students think about what the Court means to achieve in footnote 4 (mid-way in the discussion I draw on Bruce Ackerman’s persuasive showing that anonymous and diffuse minorities, rather than those that are discrete and insular (and as a result better positioned to protect their interests) really deserve the judicial protection the Court is concerned about). Reflecting on the exercise at the end of the equal protection unit of the course also allows students to assess how well the Court has lived up to the footnote 4 promise.

Over the years, the lists of discrete and insular minorities my students have supplied have contained some predictable candidates (gays and lesbians; the Amish) and some less predictable (“forest people”).

On occasion, I have gotten redheads.

This, I suspect, is because my students have watched the South Park episode, “Ginger Kids,” in which Eric Cartman announces that redheads suffer from "Gingervitis" and have no souls.

When, however, I poll the class to ask who should be on the list and who off it, there is always an overwhelmingly majority against including redheads/gingers on the footnote 4 list.

But perhaps my class majority is too hasty. Today at the Yale Law School there is the following event sponsored by the American Constitution Society:

Are Redheads a Suspect Class?

Are redheads protected by the 14th Amendment? Join ACS for a lively student discussion on the reach of the Equal Protection Clause, moderated by a very special guest.

The description is a bit misleading because of course redheads are protected by the Equal Protection Clause: the real question is whether redheads should warrant special status based on their hair color. (The error in the description recalls descriptions earlier this year of Justice Scalia's view that the equal protection clause does not protect against discrimination on the basis of gender as the view that women are not protected by the equal protection clause.)

That said, the, er, really burning question is: who was the special (presumably redheaded) guest? Australian PM Julian Gillard? David Caruso from CSI: Miami? Ronald McDonald? Elmo? The possibilities seem endless. And just compiling the list of prominent redheads (Thomas Jefferson! George Washington!) surely puts to rest the claim for a new suspect class.