It’s not easy for a non–Judiciary Committee senator to make news on constitutional law even as his colleagues are engaged in hearings on a U.S. Supreme Court nomination. But Indiana senator Mike Braun managed to do that in an interview with reporters from his state. After Braun took the common Republican position that states, rather than the federal courts, should control most aspects of abortion policy, he was asked if his commitment to states’ rights would extend to letting legislators and governors ban interracial marriage. To put it another way, if, as a matter of principle, the Supreme Court should reverse the 1973 decision in Roe v. Wade and turn the abortion issue back to the states, shouldn’t it also reverse the 1967 decision in Virginia v. Loving and turn the interracial-marriage issue back to the states, too? That made sense to Braun, who said the Court shouldn’t “homogenize” national issues: “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.”
Now even though Braun’s background is that of a businessperson selling truck parts and accessories, not a lawyer, he presumably has a couple of lawyers on his staff. You can imagine their chagrin when the boss made that comment and thus embraced the rather radical idea (highly controversial since the end of the Civil War) that states’ rights trump every other constitutional consideration. In the case of interracial marriage, a unanimous Supreme Court held that race-based marriage prohibitions blatantly violated the Equal Protection Clause of the 14th Amendment (a separate ground from the due-process-clause basis of Roe). It’s kind of hard to argue otherwise in the post-civil-rights era, which is why Braun is very alone in his contention.
Later Tuesday, presumably after Braun’s staff frantically reached him following the publication of the interview he had granted, the Hoosier lawmaker briskly walked back his remarks:
It’s unclear how Braun “misunderstood” such a direct question — indeed, one reporter said the question was “asked multiple times in different ways to ensure Braun meant and understood what he said concerning interracial marriage” — but maybe he just meant he misunderstood constitutional law.