How Are We Still Debating Interracial Marriage in 2022?

Representative image.

“You would be OK with the Supreme Court leaving the question of interracial marriage to the states?”

“Yes,” said Sen. Mike Braun of Indiana while fielding questions from local media on Tuesday. “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,” he said. “That’s hypocritical.”

Braun walked this back, of course, undoubtedly aware of the damage it could do if he let it stand. “Earlier during a virtual press conference I misunderstood a line of questioning that ended up being about interracial marriage,” he said in a statement to NBC News. “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.”

As damage control goes, this was unpersuasive. It’s not just that the questions he originally answered were clear, it’s that Braun’s answer was consistent with what he had said throughout the news conference. His argument to reporters was that the existence of certain rights, and the particular shape they take, was best left to the states. He used abortion and marijuana legalization as examples. It was then that a reporter asked if this applied to interracial marriage.

“Would that same basis” apply “to something like Loving v. Virginia, the Supreme Court case that legalized interracial marriage?”

To which Braun said, “When it comes to issues, you can’t have it both ways.” When another reporter asked him to clarify using a version of the same question, he did. Braun was confronted with the implications of his own beliefs. It is to his credit that he did not flinch from them.

Braun wasn’t the only Republican to speak candidly this week. In a video statement criticizing Judge Ketanji Brown Jackson, President Joe Biden’s nominee to the Supreme Court, Sen. Marsha Blackburn of Tennessee condemned the court’s “constitutionally unsound” ruling in Griswald v. Connecticut, the landmark 1965 case that established a constitutional right to privacy, striking down a Connecticut law that restricted married couples’ access to birth control. And Sen. John Cornyn of Texas used his time during the Jackson hearings to question the merits of the Supreme Court’s ruling in Obergefell v. Hodges, which legalized same-sex marriage in 2015.

Although it’s tempting to think otherwise, these are more than sound bites intended for Fox News or One America News Network or Twitter. They represent a worldview, not simply of conservative social values, but of the proper organization of America’s political and constitutional order.

The great legal and political advance of the 1950s, '60s and ’70s was the creation of a universal baseline for civil and political rights. A floor, of sorts, akin to the one imagined by the authors of the 14th Amendment to the Constitution when they wrote that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Before the emergence of the postwar civil rights movement and its legal and political arm, the scope of your rights varied from state to state. This was most acute for Black Americans, who became second-class citizens upon entering the states of the former Confederacy, but it was true across a range of issues for a large number of Americans. The extent of your voting rights, of your privacy rights, of whether you could marry or obtain an abortion, of whether you were counted equally for the purposes of representation, varied depending on where you lived in the country.

To the degree that this was “freedom,” it was the freedom to dominate, exercised by people at or near the top of our various overlapping hierarchies. And in fact, the ability to circumscribe rights for particular groups of Americans was itself constitutive of that hierarchical power. The decentralization of rights gave local bullies the space to thrive.

The rights revolution weakened and unraveled this state of affairs. The effect of the Voting Rights Act, for example, was twofold. It democratized political power in the South and it undermined the hierarchical social relations of Jim Crow. The introduction of something like political equality — established and secured by the federal government — helped lay a foundation for greater social equality and a more egalitarian society.

With that in mind, one way to understand the agenda of much of the modern Republican Party — from its crusade against Roe v. Wade and its attacks on the Voting Rights Act, to the frantic efforts of some Republican-controlled states to stigmatize sexual minorities — is that it is an attempt to make rights contingent again.

If successful, Republicans would effectively handcuff the federal government’s ability, either through legislation or through the courts, to establish and maintain that universal baseline for civil and political rights. And it would mean a return to the world as it was when the standard-bearers for hierarchy — whether of race or of gender or of class — had much freer rein to dominate as they saw fit.

As it stands, as Ron Brownstein wrote in The Atlantic last year, there is already a “great divergence” between “the liberties of Americans in blue states and those in red states.” And as Republican-led states ban abortion, ban books, restrict the teaching of America’s racial history in schools and trample on the rights of transgender people, this will only get worse.

Braun’s mistake was not that he misunderstood the question; it’s that he understood it all too well. The world he and his colleagues are working toward is one in which the national government defers the question of civil and political rights to the states. And it is in the states, free from federal oversight, where people like Braun can exercise real control over what you might do, how you might live and who you might love. It’s freedom for some and obedience for the rest.