It was easy to miss Tuesday night between the non-circus circus of the Republican interrogation of Judge Ketanji Brown Jackson and Russians turning parts of Ukraine to ash (Washington Post):
Sen. Mike Braun (R-Ind.) said Tuesday that he would be open to the Supreme Court overturning its 1967 ruling that legalized interracial marriage nationwide to allow states to independently decide the issue.
Braun — who made the comments during a conference call in which he discussed the nomination of Judge Ketanji Brown Jackson to the Supreme Court — also said he’d welcome the rescinding of several key decisions made by the court in the past 70 years to pass the power to the states.
The purveyors of cancel culture phobia would like to cancel well over a half century of expanded liberties. The anticipatory drool over the prospects of reducing American women — especially educated, accomplished women — to birthing vessels is just the start. All that questioning Jackson faced about enumerated rights and judicial activism were dog whistles to extremist Republicans opposed to legalizing interracial marriage (Loving v. Virginia) and same-sex marriage (Obergefell v. Hodges). After eliminating Roe, this is where we go next, wink, wink.
Asked if he believes Roe v. Wade represents judicial activism (of the kind conservatives oppose), Braun added:
“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.”
Braun answered “yes” when asked if the same should apply to Loving. Homogenize is a revealing word choice in this context. It has a certain mongrelization flavor to it.
Braun subsequently backtracked:
In a statement to The Washington Post after the conference call, Braun said he “misunderstood” the reporter’s questions on Loving and stressed that he opposes racism.
Mark Joseph Stern did not miss the clues dropped by Republican on the Senate Judiciary Committee (Slate):
Loathing for Obergefell emerged early on Tuesday, when Republican Sen. John Cornyn launched a frontal assault on the ruling, then sought Jackson’s reaction. He began by criticizing “substantive due process,” which holds that the “liberty” protected by the due process clause protects substantive rights, not just procedural ones. The Supreme Court has used this theory to enforce “unenumerated rights” that it deems fundamental, including the right to marry, raise children, use contraception, and terminate a pregnancy. Along with equal protection, it served as the basis of Obergefell. According to Cornyn, however, this doctrine is “just another form of judicial policymaking” that can be used “to justify basically any result.”
Obergefell, Cornyn told Jackson, was “a dramatic departure from previous laws” that contradicted “234 years” of history. Most states, he pointed out, had not yet repealed their bans on same-sex marriage when the “edict” came down. “Do you share my concern,” he asked Jackson, “that when the court … creates a new right, declaring that anything conflicting with that is unconstitutional, that it creates a circumstance where those who may hold traditional beliefs on something as important as marriage, that they will be vilified as unwilling to assent to this new orthodoxy?”
Cornyn then lectured Jackson about the alleged evils of Obergefell. “When the court overrules the decisions made by the people,” he told her, “as they did in 32 of the 35 states that decided to recognize only traditional marriage between a man and a woman, that is an act of judicial policymaking.” The senator went on to claim that “Dred Scott, which treated slaves as chattel property, was a product of substantive due process.” (That’s not actually true, but it marks an obvious effort to sully decisions like Obergefell with the taint of racist origins.) Cornyn also dismissed Obergefell as “court-made law that we’re all supposed to salute smartly and follow because nine people who are unelected, who have lifetime tenure, whose salary cannot be reduced while they serve in office—five of them decide that this is the way the world should be.”
Sen. John Kennedy of Louisiana and Ben Sasse of Nebraska joined in later.
In case it wasn’t clear what these senators were up to, Cornyn made it explicit on Wednesday afternoon. “The Constitution doesn’t mention the word abortion,” he lectured Jackson, “just like it doesn’t mention the word marriage.” These senators appear confident that the Supreme Court will overrule the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization, which should come down by June. They are so confident, in fact, that they prodded Jackson to say whether she would abide by Dobbs once she joins the court, rather than fight to revive Roe. But on the whole, Republicans were noticeably less engaged over abortion than they were about same-sex marriage.
It’s easy to see why. The GOP, alongside the conservative legal movement, has built up a massive infrastructure to fight the culture wars. After Roe, it will need a new target, and marriage equality is the obvious choice. Republicans never really gave up on the issue, but rather staged a tactical retreat after Obergefell, pressing for sweeping exemptions from civil rights laws to legalize discrimination against same-sex couples. But after Justices Brett Kavanaugh and Amy Coney Barrett replaced the gay-friendly Anthony Kennedy and Ruth Bader Ginsburg, this retreat slowed to a crawl, and Republicans sought to regain some ground. They pressed the Supreme Court to roll back protections for same-sex couples (to no avail—yet) and have now launched a campaign to mandate anti-LGBTQ discrimination in schools. A GOP legislator in Texas has asked Attorney General Ken Paxton to declare that the state’s ban on same-sex marriage remains valid and enforceable.
As I noted on Wednesday, democracy appears nowhere in the text of the Constitution either. In its many references to elections and voting, democracy is implied. Republican senators interrogating Judge Jackson could as easily conclude from that absence that democracy is unconstitutional. Their party’s default position today is that majority rule is dispensible. That is Donald Trump’s position, Team Kraken’s, and the Jan. 6 insurrectionist mob’s.
“[I]f the court repudiates substantive due process,” Stern warns, prior decisions built on it are next. Mike Braun claims now to have misspoken about Loving. But he “was only following his beliefs to their logical conclusion.”
Look once again at the image at the top. This, THIS, is what keeps many white conservatives awake at night and sends shivers up their manly spines.
Someone notify Barack Obama, Kamala Harris, Dwayne Johnson, Zendaya, Derek Jeter, Mariah Carey, Jason Momoa and Lisa Bonet, Tiger Woods, and others that the GOP is coming for their parents’ marriages.
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