Judicial Review of Unconstitutional State Laws


JudicialReview of Unconstitutional State Laws

The state law in question, The Ginger Snap Rule, specifically bansthe marriage of two individuals with the same hair color, in thiscase, the hair color being red. The reasoning behind this law derivedfrom recent scientific findings that have linked persons with redhair with an increased susceptibility to skin cancer. Due to the highcost of cancer treatment, and in effect, the high amount of stategovernment funds that go towards cancer treatment, the proponents ofthe law cited the high tax burden that would be incurred by the stateif the number of red-haired people increased. Furthermore, thedominant religion within the state had also historically associatedred-haired individuals with the devil and had consistently refused toperform marriage ceremonies for individuals who both had red hair.Therefore, we note that the development of the law in question wasprimarily backed by economic and scientific basis, with a religiousundertone to it.

To declare the Ginger Snap Rule unconstitutional, it is necessary toidentify which tenet of the constitution it goes against. Onerelevant clause is the Equal Protection Clause of the FourteenthAmendment. The Fourteenth Amendment has two applicable segments. Thefirst relates to Due Process which limits the state’s ability toenact laws that interfere with liberty, property, or life [CITATION Ham12 p 236 l 1033 ].The second regards the Equal Protection clause, a closely relatednotion to that of due process. This clause applies to governmentpractices or laws that treat different classifications of peopledifferently. This clause therefore adequately applies to this casesince Eric it treats people with red hair differently. However, itshould be observed that not all such practices or laws can beconsidered to violate the equal protection clause. This is a factwell acknowledged by the Supreme Court, which notes that not all lawsthat create classifications are unconstitutional. Furthermore, it isstated that only invidious discrimination which contravenes theclause [CITATION Ham12 p 198 l 1033 ]. Invidious discriminationrefers to a type of classification or discrimination based onprejudice or ill will because of traits such as national origin,disability, legitimacy, age, sex, religion, color, or race.

Since the judicial review of state laws that might have violated theequal protection clause require courts to void such laws, it is aprocess taken quite seriously by the courts, and ultimately, theSupreme Court. In most cases, the Supreme Court opts to uphold statelaws, due to the great deference given to the lawmaking power ofstates. Furthermore, the Supreme Court believes in its greaterobligations to both individuals who have experienced discriminationfor a long time and to constitutional rights, more than any otherprivileges and rights. It, therefore, developed three different teststo determine if indeed a state law has contravened constitutionalrights. The following three questions guide the court on which testto apply:

  1. Does the law affect a fundamental right?

  2. Does the law target a suspect class?

  3. Is there purposeful discrimination?


This refers to a right impliedly or expressly found in theConstitution. The law, in this case, will be subject to strictscrutiny from the court, which means that the law must have beennecessitated by a compelling state interest, and should be narrowlytailored to meet those needs [ CITATION Sid l 1033 ].

Suspect Class

Such laws immediately suggest a prejudicial motive behind them andentail groups that were historically targets of discrimination. Theselaws are also subject to strict scrutiny. The Court, however,developed an intermediate-scrutiny level for quasi-suspect classes,which include laws that discriminate based on gender or legitimacy.

Rational Basis

The third question concerning purposeful discrimination is applied inthe rational basis test. In this test, the Court attempts todetermine whether the law serves a legitimate state interest and ifthe law is reasonably related to that end. States possess policepowers that grant them the power to enact laws promoting the health,safety, and general welfare of its citizens [CITATION Ham12 p 204 l 1033 ].

This case can be based both on the first and second tests, whichexamine the fundamental rights and suspect class. The fundamentalright that has been violated is the right to equal protection underthe law. Even though the equal protection clause does notspecifically mention marriage, this standard was initially applied tomarriage by the US Supreme Court in Loving v. Virginia (1967)where a Virginia law banning interracial marriage was struck down.The Court found that the freedom to marry has been a long recognizedvital personal right and further stated that marriage is a basiccivil human right [CITATION Pas09 p 248 l 1033 ]. With regards tothe suspect class, it is quite an apparent, and provable fact, whichthe High Church of Angelica has had a historical bias towards peoplewith red hair, terming the hair as a sign of the Devil. In order tocurb the increase of red-haired individuals, the church does notapprove of marriages between two red-haired individuals. Since HighChurch of Angelica is the state’s dominant religion, it isplausible why this law came into place. It might be possible to castred-haired individuals as an insular and discrete minority.Regardless of whether a specific standard or both standards will beapplied, the Court will have to apply a strict scrutiny standard forthe law.

Therefore, the highest level of scrutiny will be applied to the lawto determine if there was an overwhelming necessity or compellinggovernment interest warranting enactment of the law. In order todetermine the chances of success for the case, various factors willneed to be considered. Primary among these is the reason behind theenactment of the specific law. If the reason was compelling enough,then the case has little chance of success. One of the major reasonscited by the state concerns scientific evidence linking red-hairedindividuals with higher rates of skin cancer. This scientificreasoning is supported by evidence from scientific research(Beaumont, et al., 2005 Mitra, et al., 2012 Valverde, Healy,Jackson, Rees, &amp Thody, 1995). As noted by Ancheta [CITATION Anc06
l 1033 ],scientific findings have the power to shape theoretical perspectivesand influence value judgments and even challenge deep-seated beliefsand values [CITATION Anc06 p 77
y l 1033 ]. Despite theusefulness of scientific evidence, however, constitutionalinterpretation primarily remains a process centrally driven byconstitutional values [CITATION Anc08 p 1172 l 1033 ].

The second factor that has to be considered is the issue of judicialactivism. This refers to instances where judicial rulings are deemedas being based on political or personal reasons, rather than existinglaw. The Supreme Court has often been accused of judicial activism [ CITATION Lip13 l 1033 ],a fact that may cause them to exercise judicial restraint withregards to certain cases. The Ginger Snap Rule may fall under suchcases which the Supreme Court may feel it is obligated to expressrestraint, especially since the law falls under the policing powersof the state.

The question now is what are the chances of success for the case ifpursued. With regards to the loss of the case, the following factorsare to be considered. Even if strict scrutiny is applied to the law,it will be found tobe backed by solid scientific evidence and logicalreasoning. The state will show that the law, rather than beingdiscriminatory, is actually helpful both health wise andeconomically. This is because it reduces the chances of a red-hairedchild being born, hence limiting the number of people with highsusceptibility to cancer, specifically skin cancer. Furthermore, therecent clamor against judicial activism may sway the court to sidewith the state,

However, the case has a high chance of winning. First of all, the lawclearly violates red-haired couples their right to equal protectionunder the law. The fact that no such laws exist in any other statewarrant it to high scrutiny. Furthermore, the state has notdemonstrated the fact that it contains a disproportionately largepopulation of red-haired individuals as compared to other states.

Secondly, the same scientific evidence that shows high susceptibilityto cancer in red-haired individuals, also shows a similarly highsusceptibility in individuals with pale skin, blue eyes, high densityof freckles, and an inability to tan (Gandini, et al., 2005 Mitra,et al., 2012). Therefore, it can be argued through the suspect classlogic that red-haired individuals were unfairly targetted since thelaw should have also banned marriages for people with freckles andpale skin. However, the law only targetted red-haired individuals dueto their historical discrimination by the dominant religion of thestate. Therefore, the law was purposefully discriminatory. Thisconclusion is further supported by scientific evidence which showsthat skin cancer is not even among the top five most prevalent typesof cancer. Furthermore, it is not even among the top ten deadliestcancers [CITATION USC16 l 1033 ].

In conclusion, I confidently state that the case has a high chance ofsuccess due to the inconsistencies used in the application of theGinger Snap Rule within the state.


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