Reporter Dan Carden: “So you would be o.k. with the Supreme Court leaving the question of interracial marriage to the States?”
Indiana Senator Mike Braun: “Yes.”
This wasn’t a “gotcha” question and Senator Braun didn’t misunderstand it. He just said the quiet part out loud. And, by this, I’m not saying that Sen. Braun disapproves of interracial marriages. If I had to guess, they probably don’t bother him at all. What he did was forthrightly acknowledge all of the other rights that are impaired when one tries to attack the legal underpinnings of Roe v. Wade and to embrace “state’s rights.” The fact of the matter is that you can’t embrace “state’s rights” without getting all kinds of nasty stuff all over yourself. And ignoring Roe’s acknowledgment that the Constitution protects a right to privacy even though that right is not explicitly articulated in the text of the Constitution means that one’s right to marry someone of a different race (Loving v. Virginia) or use contraception (Griswold v. Connecticut) or marry someone of the same sex (Obergefell v. Hodges) are rights that are subject to the whims and popular prejudices of the voters in your state. As Hodges characterized the decision in Griswold, the fundamental rights protected by the Fourteenth Amendment’s Due Process Clause “extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” The identification and protection of these fundamental rights has not been reduced to any formula.
“State’s rights,” of course, is the fig leaf thrown over a preference for slavery when coming out and saying that the “peculiar institution” was an outright good became an abominable thing to say in polite society. Despite the fact that the declarations of the Confederate states said explicitly that they were purporting to leave the U.S. because they wanted to keep enslaving other humans; after the North proved itself stronger than the Confederate insurrectionists, Southern apologists pivoted to claims that the South was only fighting for “state’s rights.” This was also the term used to whitewash a popular preference for Jim Crow laws in many of those same states. It’s no accident that southern white conservatives tend to be the demographic most fond of the concept. It’s a principle that seems to become most prominent when used in service of state laws that impose burdens on less politically powerful demographics. It’s not a principle that seems to come up very much when determining whether, for example, the federal government ought to continue criminalizing marijuana despite state level legalization.
One complaint I saw on social media was that the question about interracial marriage was a “gotcha” question. The rationale was that interracial marriage has been widely accepted for a long time. Probably the same feelings hold for contraception. No state is going to go back to banning interracial marriage or contraception. Though the recent conservative attacks on transgender people don’t inspire a bunch of confidence along these lines, I suspect that this sentiment is probably right. Society has moved on and, while contraception was taboo in the 60s and mixed marriages were still shocking in the 70s, people are by and large very comfortable with these things, and only fringe types get worked up by them. Gay marriage might even fit into the no-big-deal-anymore category even though this blog is old enough to have documented a time when the Speaker of the Indiana House of Representatives counted a state-level ban on the practice as being of supreme importance to the state. But we’ve moved along precisely because the Supreme Court recognized Constitutional protections for these individual choices even where popular prejudices resulted in such choices being illegal. When society didn’t crumble, we mostly got on with our lives and forgot why anyone got so worked up over such things.
Abortion is the thing that folks like Braun want to focus on. And, when the issue is considered in good faith, it’s a thornier issue. It comes down to a moral question about when and why life should be entitled to legal protection. Specifically, what is it about human life that merits greater protection than other kinds of life? And when does a human egg and human sperm or combination thereof reach the point when the law ought to diminish the rights of a woman in order to protect that emerging life? In Roe, the Supreme Court grappled with that question, trying to balance things with its trimester tests. Opinions can and do differ on whether the Supreme Court struck the correct balance, but the bigger problem is that many of the arguments that are ostensibly about the sanctity of fetal life are, in reality, stalking horses for other questions about gender relations, sexual morality, and the primacy of religion in our society. That’s why efforts to reduce abortions through increased access to birth control or sexual education don’t cut much ice with the anti-abortion crusaders despite evidence that they work. That’s why a focus on protecting and improving life after it has been born seems to fall on deaf ears. Fred Clark and others have done a good job over the years documenting when and why the anti-abortion movement came into being. He says that, among non-Catholics anyway, concern about abortion is “younger than the Happy Meal.” The reality is that the anti-abortion movement owes more to conservative operatives like Paul Weyrich and evangelical leaders who seized on abortion as a rallying cry that was more socially palatable than protecting segregated schools which had been more of an animating principle for that group prior to 1979.
So, you have a movement that is framed as being about abortion but designed in a way that will, not accidentally, favor the status quo on issues of race, sex, and religion. When someone like Braun is talking about judicial philosophy on abortion, it’s not a “gotcha” to ask him about related questions dealing with race, sex, and religion. When he can’t manage to thread the needle or even forthrightly acknowledges that they’re all tied together, it’s not because he’s misunderstood the question. It’s because all of these things are a package deal.