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.
Critical of activism from the bench, Braun cited a series of landmark decisions made by the court, including Roe v. Wade, which legalized abortion, and Loving v. Virginia, which legalized interracial marriage.
When asked by a reporter whether he would consider the Supreme Court potentially striking down Roe this year to be “judicial activism,” Braun said he thought what justices did in 1973 to pass Roe was “judicial activism.”
“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.”
Individual states, he said, should be able to weigh in on these issues “through their own legislation, through their own court systems.”
The same reporter asked Braun whether he would apply the same judgment to Loving, and Braun said “yes.”
“I think that that’s something that 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. “I think that’s hypocritical.”
The reporter asked whether Braun would say the same about Griswold v. Connecticut, the 1965 Supreme Court decision that a state’s ban on the use of contraceptives violated the right to marital privacy.
“You can list a whole host of issues,” Braun said. “When it comes down to whatever they are, I’m going to say that they’re not going to all make you happy within a given state, but that we’re better off having states manifest their points of view rather than homogenizing it across the country, as Roe v. Wade did.”
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.
“I misunderstood a line of questioning that ended up being about interracial marriage,” Braun said. “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.”
Braun did not comment on whether he also misunderstood the line of questioning on Roe or Griswold.
Braun said that while Jackson seems qualified for a seat on the court, he said he expects her not to be an “activist” during her tenure.
“Stick with interpreting the law,” Braun said, according to WFYI. “Don’t legislate from the bench.”
As the Senate weighs Jackson’s nomination, some of Braun’s fellow Senate Republicans have questioned landmark Supreme Court decisions.
On Monday, Sen. Marsha Blackburn (R-Tenn.), during her questioning of Jackson, said she opposes Griswold, calling the decision “constitutionally unsound.”
Similarly, Sen. John Cornyn (R-Tex.) questioned Jackson on Tuesday on the court’s authority in Obergefell v. Hodges, the 2015 decision that legalized marriage equality — which he called an “edict.”
“When the Supreme Court decides that something that is not even in the Constitution is a fundamental right and no state can pass any law that conflicts with the Supreme Court’s edict, particularly in an area where people have sincerely held religious beliefs, doesn’t that necessarily create a conflict between what people may believe as a matter of their religious doctrine or faith and what the federal government says is the law of the land?” Cornyn asked Jackson.
Jackson said that “is the nature of a right.”
“When there is a right, it means that there are limitations on regulation, even if people are regulating pursuant to their sincerely held religious beliefs,” Jackson said.