In a democracy the majority wins. Which makes minority groups vulnerable. At the dawn of the Republic, John Adams warned about "the tyranny of the majority."
Almost a century later, the 14th Amendment finally declared that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Despite its being passed specifically to protect the rights of ex-slaves from the South's new Black Codes, the Supreme Court astonishingly ruled the 14th Amendment did not apply to states as it dismissed indictments for lynching two blacks that had been issued based on violations of the amendment.
Sixty years later the Court reversed itself. In the 1950s and 1960s, the Warren Court, now viewed by conservatives as engaging in unwanted judicial activism, intervened to protect minorities from state legislatures.
In 1966, the Supreme Court struck down a $1.50 tax imposed on each voter (equivalent to about $10.50 today). Legislators in southern states defended the poll tax as a way to prevent "repeaters and floaters" from committing voting fraud. The Court disagreed. It rules that voting is a fundamental constitutional right and thus the burden was on the state to prove that a discriminatory law was necessary. The Court argued that introducing a "wealth or payment of a fee as a measure of a voter's qualifications" violated the equal protection clause by unfairly burdening low-income, mostly black voters.
In 1967, the Court overturned bans on interracial marriage that remained on the books, and in some cases the constitutions of 16 states. The defendant, the state of Virginia, argued that marriage laws are traditionally under the control of states and it had a rationale for treating interracial marriages different from other marriages because some studies found that children of interracial couples suffered intellectually and emotionally and the Bible clearly revealed God's intention to separate the races. The Virginia Supreme Court had agreed, "Both sacred and secular history teach that nations and races have better advanced in human progress when they cultivated their own distinctive characteristics and culture and developed their own peculiar genius."
"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men," the Court declared. "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." And because the freedom to marry is a fundamental right, the burden of proof is heavily on the state to offer substantial evidence that limiting access to that fundamental right was necessary to achieve a compelling government interest.
Forty years after the Warren Court, we have the Roberts Court, which approaches the equal protection clause very differently. Instead of imposing the burden of proof on states that limit fundamental rights, the Roberts Court requires only a "rational basis" for doing so. The burden of proof now rests on those discriminated against "to negative every conceivable basis which might support" the discrimination.
In 2008 the Supreme Court examined an Indiana photo ID law. Indiana argued, as the southern states had a generation earlier, that such an ID was necessary to combat voter fraud. They offered no evidence to support that contention. Indeed Indiana conceded it was unable to identify a single instance of in-person voter impersonation fraud in all of its history. The Court majority acknowledged that as many as 40,000 Indiana voters could be at risk of losing their capacity to vote because they would have to bear the cost of traveling to distant locations and pay up to $12 for a birth certificate or upwards of $100 for a passport to obtain such an ID, imposing a far greater financial penalty than had been imposed by the southern poll tax.
By a 5-4 vote the Roberts Court upheld the law, blithely dismissing a dissent by Justice David Souter who pointed to previous Court decisions that had embraced the seemingly commonsensical principle that "a State may not burden the right to vote merely by invoking abstract interests, be they legitimate... or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed." The Roberts Court, unlike the Warren Court, concluded that Indiana had a "rational basis" for burdening voters. No evidence was necessary.
The Supreme Court decision unleashed a wave of voter restriction laws, ending a century of reducing barriers to voting (e.g. women right to vote, 18-year-olds voting, same-day registration, early voting, voting by mail). Since 2009, 17 states have enacted voter photo ID laws.
The Roberts Court has yet to rule on the constitutionality of same-sex marriage. It could do so as early as next year. The case will involve a lower court decision overturning a 2008 California ballot initiative that added an amendment to the state constitution banning such marriages. "An initiative measure adopted by the voters deserves great respect," that court acknowledged, but added:
"When challenged, however, the voters' determinations must find at least some support in evidence. ... Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval."
We don't know how the Roberts Court will rule. But likely it will adopt the very low bar to discrimination it did in Indiana. Justice Antonin Scalia has already asserted that banning same-sex couples from marrying meets that standard. "Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is immoral and unacceptable constitutes a rational basis for regulation," he has written.
This November, four states -- Maine, Maryland, Minnesota and Washington -- will vote on whether to ban or legalize same-sex marriage. Minnesota will also vote on whether to adopt one of the nation's most restrictive voter photo ID laws. The abdication of the Supreme Court of its duty to enforce the 14th Amendment puts an extra burden on voters in these states to decide on what basis they are making a decision. This is important because 93 to 99 percent of the voters will not be directly affected by a decision in favor of discrimination since voter photo ID will affect 1 to 3 percent and same-sex marriage bans about 5 to 7 percent.
What standard will the individual voter in these states use to make this momentous decision?
Will it be the standard used by the Roberts Court under which the theoretical possibility of voter fraud is sufficient to burden tens of thousands of voters and potentially disenfranchise many and tradition is sufficient to deny the right to marry to potentially hundreds of thousands of our neighbors?
Or will we use the higher Warren Court standard under which those who would deny equal protection to minorities must provide substantial evidence why there is a compelling interest for society to do so?