During an interview with reporters last week, Indiana Senator Mike Braun went beyond the usual Republican line that decisions about abortion rights should be left up to the states. The question of interracial marriage, too, he said, should be left to the states to decide.
Braun was responding to a reporter who seemed to be testing how far he would take his states’ rights philosophy: If the Supreme Court’s 1973 decision in Roe v. Wade improperly interfered with individual states’ ability to set their own rules for abortion, as Braun argued, which of the court’s other decisions should be overturned on that basis? Should the court’s unanimous 1967 decision in Loving v. Virginia, which decreed state laws forbidding interracial marriage unconstitutional, also be overturned?
Braun said, emphatically, “Yes.” States will naturally have differing views on such issues, he continued, adding that “when you want that diversity to shine within our federal system, there are going to be rules, and proceedings, that are going to be out of sync with maybe what other states would do. That’s the beauty of the system.” He later tried to walk back the statement about Loving, claiming to have misunderstood the question, an implausible assertion given that the reporter reiterated and rephrased the question to check for understanding, which did not seem to bother Braun at the time.
Nevertheless, Braun’s comments reflect a broader shift among Republicans and those in the conservative legal movement. Emboldened by their new 6-3 majority on the high court, conservatives again and again have proven willing to challenge rulings seen very recently as firmly settled law. Case in point: Braun also indicated that the Supreme Court’s 1965 decision in Griswold v. Connecticut, which legalized contraception for married couples, should be overturned, a statement he did not walk back. And he is not alone in that position. Other Republican politicians, including Tennessee Senator Marsha Blackburn and several candidates in this year’s race for state attorney general in Michigan, have also denounced Griswold. And just last week, during Supreme Court nominee Ketanji Brown Jackson’s confirmation hearings, Texas Senator John Cornyn attacked the court’s 2015 ruling in Obergefell v. Hodges, which legalized same-sex marriage nationwide.
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Even in this context of increasing right-wing judicial extremism, the fact that Braun felt comfortable criticizing Loving is a disturbing sign. As I showed in my 2020 book, White Fright: The Sexual Panic at the Heart of America’s Racist History, the court’s ruling in Loving prompted no major political backlash at the time—and it has remained uncontroversial during the half-century since. This stands in stark contrast to the white uproar in 1954, when the court ruled in Brown v. Board of Education that public school segregation was unconstitutional, stoking racist fears that integrated schools would lead to interracial sex and marriage, or “miscegenation.”
This is the great mystery of Loving. The many opponents of Brown—largely (though not exclusively) located in the South—were appalled by what they saw as Brown’s tacit endorsement of interracial marriage. How could these same people shrug off a ruling, 13 years later, that explicitly sanctioned such an outcome? Aversion to interracial marriage has been a deep and powerful force in this country from the start, but it took on an especially important role from the Reconstruction period onward, as white Southerners grew increasingly fearful of the newly freed Black people among them, and increasingly expressed those fears in sexualized terms. Over the following decades, those sexualized fears became a foundation of Southern society. The anti-miscegenation laws that Loving overturned were, in fact, the linchpin of the Jim Crow segregation system.
Curiously, despite the absence of a focused political backlash to Loving, public opinion polls showed that Americans were slow to accept the idea of interracial marriage. A year after the decision, in 1968, 72 percent of Americans disapproved. A decade later, that number had declined significantly, but still stood at 54 percent. It wasn’t until 1997 that a majority of Americans approved. By 2021, only 3 percent disapproved. That same poll, however, also found a marked partisan difference in attitudes, with 7 percent of Republicans disapproving of interracial marriage versus just 2 percent of Democrats. Perhaps Senator Braun was seeking to address these voters’ concerns with his comments on Loving.
The decline of society-wide anxiety about interracial marriage was a momentous development. But that sea change now appears to be in doubt, as politicians like Braun and ordinary people become more and more confident in questioning the legal and cultural consensus on the matter.
One reason behind this shift may be advocacy by proponents of religious freedom. It was on states’ rights grounds that Braun attacked Loving, but if the trend continues and we see increasingly open opposition to interracial marriage, we may also see religion deployed more frequently in these attacks. After all, it was on the basis of religion that opponents of interracial marriage argued against Loving back in the 1960s: There was no mention of a right to marry in the Constitution, they said, and, more importantly, God was against interracial marriage. When the couple behind the case, Mildred and Richard Loving, appealed their initial conviction for violating Virginia’s anti-miscegenation law, Circuit Court Judge Leon A. Bazile ruled against them, insisting:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for this interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
Justices Clarence Thomas and Samuel Alito had already invoked religious freedom in their opposition to same-sex marriage. In a 2020 memo criticizing Obergefell, Thomas and Alito cited the case of Kim Davis, a former county clerk in Kentucky who made headlines in 2015 for refusing to grant marriage licenses to same-sex couples. Because of Obergefell, they wrote, “Davis found herself faced with a choice between her religious beliefs and her job.” The ruling, in their view, was evidence of the court’s willingness “to privilege a novel constitutional right over the religious liberty interests.”
In fact, the court tried to preempt religious liberty concerns in in the text of Obergefell itself. Writing for the majority in that decision, Justice Anthony Kennedy explicitly echoed the court’s ruling in Loving, but he also went out of his way to state, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.”
If conservative justices like Thomas and Alito are as appalled as they say by the damage that Obergefell has done to religious liberty, why shouldn’t they focus their ire on Loving too? Is not interracial marriage as “novel” a constitutional right as same-sex marriage? Does it not also constrict religious liberty, by their logic? If protecting religious liberty means carving out exemptions for bakers and florists who don’t want to serve same-sex couples, wouldn’t it follow that people who oppose interracial marriage for religious reasons should have a similar right to deny interracial couples service in their restaurants, or the right to stay in their hotels? Do politicians like Braun and jurists like Thomas and Alito believe that there are “decent and honorable” reasons for opposing interracial marriage? Braun’s comments seem to suggest that he does. But for Clarence Thomas, who is in an interracial marriage himself, the question may prove slightly more complicated.