Once upon a time interracial marriage was illegal in Virginia and numerous other states. (In fact, even looking at a white woman could get a black kid killed.) These racist laws were struck down in Loving v. Virginia, a 1967 Supreme Court decision (details here).
A perplexed Sen. Mike Braun (R-IN, photo at left) at first wasn’t sure that was a good idea.
I’m sure Braun would never admit to being racist, and I’m not saying he is. Rather, he got tripped up by his states’ rights and anti-judicial activism dogmatism.
States’ rights, you will recall, is what the South fought for in the Civil War. Back then, the biggest states’ right of all was legal slavery. After they lost that argument, they fought for the next best (from their viewpoint) states’ right: Legal segregation. They lost that argument, too.
Today, conservatives’ biggest states’ rights cause is letting states decide whether abortion will be legal. Some of the proponents of this would go even further and let states outlaw abortion in other states, too. For example, by passing laws that allow a stranger in, say, Florida, collect a $10,000 bounty from a Texas resident for getting a legal abortion in Illinois. (In Idaho, Republicans are making the bounty $200,000.)
Braun’s position is the Supreme Court should let states do that. Pressed about whether that’s judicial activism, he said the Roe v. Wade decision was judicial activism and overturning it merely rescinds judicial activism that shouldn’t have happened in the first place.
Still with me?
Then, he was asked whether Loving v. Virginia was judicial activism, too. And whether states should decide whether a white and black couple can get married.
I’ve got a pretty strong suspicion his mind instantly jumped to Obergefell v. Hodges, the 2015 Supreme Court decision that held same-sex marriage is a constitutional right that states can’t withhold (details here). Republicans don’t like same-sex marriage, so it follows that they don’t like that decision.
In any case Braun, who isn’t a lawyer and doesn’t have a lawyer’s ability to argue with logical consistency, walked into the trap. In a conference call with Indiana reporters, he once again stuck up for states’ rights (see story here), although he doesn’t use that loaded term; he refers to that widely-reviled (because it propped up slavery) legal doctrine as “diversity within our federal system.” Groping for consistency, he said “when it comes to issues, you can’t have it both ways.”
When the reporters did a double-take, they asked him again just to make sure they heard him correctly.
Braun was again asked if interracial marriage should be left to the states. “Yes, I think that that’s something that if you’re not wanting the Supreme Court to weigh in on issues like that, you’re not going to be able to have your cake and eat it too. I think that’s hypocritical,” and later added that it was better for states to “manifest their points of view” rather than for decisions that “homogenize” the country.
Bam.
Stunned by the blowback, Braun later that day told The Hill that he “misunderstood” the question. He said rather defensively, “Earlier during a virtual press conference I misunderstood a line of questioning that ended up being about interracial marriage, let me be clear on that issue — there is no question the Constitution prohibits discrimination of any kind based on race, that is not something that is even up for debate, and I condemn racism in any form, at all levels and by any states, entities, or individuals.” His spokesperson told The Hill that Braun “believes Loving v. Virginia should not be overturned.”
The media calls that a retraction. The rest of us call it running for your life.
He may have put out the immediate firestorm, but it cost him. To keep from being burned alive, he had to endorse the Supreme Court’s judicial activism in Loving v. Virginia, and give up any pretense of consistency. Now, there’s no way he can use the judicial activism argument to attack Roe v. Wade without cherry-picking it, which is what you’re doing when judicial activism is okay for decisions you like (or, at least, can’t afford to oppose) but not okay for things you don’t like.
The way to be consistent, of course, is by acknowledging the obvious: That federally-guaranteed rights are the same everywhere, and states shouldn’t get to decide which of those rights their citizens can have. The whole philosophy behind states’ rights was laid to rest on the Civil War’s battlefields. Given the cost in American blood, Republican senators shouldn’t try to revive it.