GOP Sen. Mike Braun Suggested Overturning Loving v. Virginia And We’re Never Letting Him Forget It

Right Wing Extremism
GOP Sen. Mike Braun Suggested Overturning Loving v. Virginia And We’re Never Letting Him Forget It

Whenever there’s a Supreme Court confirmation hearing, Republicans rant about “judicial activism.” They insist that judges shouldn’t make up laws from the bench but instead simply interpret the law from the perspective of an 18th Century land-owning white male who’s 250 years old and dead.

Tuesday, Senator Mike Braun from Indiana attacked the GOP white whale Roe v. Wade, the 1973 decision that legalized abortion nationwide.

“That issue should have never been federalized, [it was] way out of sync I think with the contour of America then,” he said. “One side of the aisle wants to homogenize [issues] federally, [and that] is not the right way to do it.”

Everything that guy just said is bullshit. According to a 1972 Gallup poll, 59 percent of Democrats and 68 percent of Republicans (!) agreed that “the decision to have an abortion should be made solely by a woman and her physician.” We can thank Phyllis Schlafly for religious conservatives’ eventual takeover of the GOP. Richard Nixon was also pro-choice prior to 1972, when, desperate for reelection, he switched his position on abortion after his speechwriter, Pat Buchanan, convinced him that this would win over hardline Catholic voters.

Significantly less popular in 1972 was interracial marriage, which only 29 percent of Americans supported. This was five years after the Loving v. Virginia decision. Not surprisingly, Braun also considers interracial marriage a matter best left up to the states “through their own legislation, through their own court systems.” How quickly the worm turns on bigger worms Clarence and Ginni Thomas.

Despite his later attempts to backpedal, here’s Braun clearly arguing against Loving v. Virginia.



BRAUN: When it comes to issues, you can’t have it both ways. When you want that diversity to shine within our federal system, there’s gonna be rules, proceedings, that are gonna be out of sync with maybe what other states will do. It’s the beauty of the system. That’s where the differences among points of view in our 50 states ought to express themselves. I’m not saying that rule would apply in general according to the topic but it should mostly be in general. It’s hard to have it on issues that you are interested in when you deny it to others with a different point of view.

Wait, this isn’t a very clear argument. Let’s skip ahead to the no race-mixing part of the program.

REPORTER: So, you’d be OK with the Supreme Court leaving the question of interracial marriage up to the states?

BRAUN: 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.

Mr. Originalist should actually read Article IV, Section 1 of the United States Constitution: According to the full faith and credit clause, states within the US states must respect the "public acts, records, and judicial proceedings of every other state.” However, prior to Loving v. Virginia, states that banned interracial marriage refused to recognize marriage certificates issued in other states for interracial couples. It’s a problem if your marriage no longer exists if you cross state lines.



Mildred Loving, who was Black, and her white husband, Richard Loving, who I guess was worth the trouble, were sentenced to a year in prison in 1958 because their marriage violated Virginia’s Racial Integrity Act of 1924. Local police had raided their home early in the morning, hoping to find them having sex. (My father was 11 when this kind of shit was going down so don’t lecture me about “critical race theory.”) The couple pled guilty to "cohabiting as man and wife, against the peace and dignity of the Commonwealth.” Their sentence was suspended but they were ordered to leave Virginia and not return together for at least 25 years. This imposed significant social and financial hardship on the couple.

When the case eventually reached the Supreme Court, Virginia argued that its racist law didn’t violate the 14th Amendment’s equal protection clause because it applied to all races. Conservatives would borrow this line of bullshit when defending laws banning same-sex marriage. The Supreme Court ruled unanimously in favor of the Lovings. In 2015, marriage equality was a five to four decision, and the conservative justices whined about effecting change that 60 percent of Americans already supported.

Conservatives aren’t content to have rightwing extremist dystopias within their own borders. Republicans introduced the Defense of Marriage Act in 1996, which Democrats shamefully supported, so that states could refuse to recognize same-sex marriages conducted in other states. This was unconstitutional on its face. Senator John Cornyn complained that Obergefell v. Hodges was “judicial activism,” but the Supreme Court was actually interpreting the Constitution as written. You can’t deny Americans full faith and credit just because they have the gay. Conservatives have trouble accepting that the Constitution grants minorities any rights at all.

Braun quickly released a boilerplate “I’m not as racist” statement:

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.

Sure, you do, senator. Now go read a history book.


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Stephen Robinson

Stephen Robinson is a writer and social kibbitzer based in Portland, Oregon. He writes make believe for Cafe Nordo, an immersive theatre space in Seattle. Once, he wrote a novel called “Mahogany Slade,” which you should read or at least buy. He's also on the board of the Portland Playhouse theatre. His son describes him as a “play typer guy."

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