Editor’s Note: Joan Steinau Lester is the author of six books, most recently “Loving Before Loving: A Marriage in Black and White.” The opinions in this commentary are her own. Read more opinion at CNN.
In 1981, long before the legalization of same-sex marriage, I committed to living for the rest of my life with Carole, the woman I loved. But when Carole and I introduced each other to friends, we had no language to describe our relationship.
If I referred to her as my “partner,” many assumed business partner. “Lover” felt too intimate, “life-partner” too clunky, “special friend” an abhorred remnant of a closeted era.
“Wife” would have made our relationship absolutely clear, but it was a word denied to us at the time.
The penalties for this extra-legal union were severe: Carole’s adored father, who was Catholic, refused to speak to her because of his faith-based objections. We both faced potential job losses if found out. Carole, working for the federal government, had to maintain an especially low profile since we’d heard of lesbians being fired once they were “discovered.”
Even my children and I were jeopardized. Fortunately, no relative sued for custody in a period when lesbian mothers were habitually deemed “unfit” for parenting.
Eventually, Carole and I bought a house together and combined our finances. Yet our accountant had to artificially untangle our taxes every year to file “single” returns.
It took a Supreme Court decision, Obergefell in 2015, to nationally recognize this same-sex marriage. When we heard the news, tears of joy and incredulity streamed down our cheeks. But also, a feeling of security washed over me. Nobody could take my wife away from me now. We were safe.
It was a feeling that was already familiar, since I’d experienced it years earlier with the Supreme Court’s Loving v. Virginia decision. That’s because my relationship with Carole was in fact, the second time my most intimate bond had been outlawed. It was also the second time that it took a sweeping Supreme Court action to grant me the freedom to love whomever I wanted.
In 1962, I’d married a Black man, and because I am considered White, our union was one that 21 states then considered illegal.
In our dingy Manhattan basement apartment, the legal status mattered little. But as civil rights activists longing to travel South for voter-registration drives, we were deterred by their anti-miscegenation laws. When my husband Julius joined SNCC, the Student Non-Violent Coordinating Committee in Mississippi – where we’d risk immediate arrest or worse – I had to stay in New York.
Even in Manhattan, the racism was intense: our landlady who lived upstairs yelled racial slurs at Julius whenever she saw him. For five years we endured her vile harangues, shouted from a second-story window each time he entered or left the building.
But in 1967, the atmosphere changed noticeably with the Loving ruling, when the Supreme Court affirmed everyone’s right to marry their (opposite-sex) partner of choice – regardless of their so-called “race.” Finally, our marriage – from which both sets of parents had withheld their approval — was legal across the United States.
The ruling conferred a social legitimacy as well as legal one: White strangers who had felt free to grill me in public about our children, asking, “How did they get so tan?” curtailed their questions. Loving normalized us. When diners in restaurants stared at our unusual family composition (interracial unions were just 3% of marriages in 1967), I began to stare back.
Over time, the social pressure took its toll. Among my few interracially coupled friends, no couple survived the decade. After eight years, our marriage also dissolved.
As improbable as a return to pre-Loving or pre-Obergefell days may sound, we see the torment this Supreme Court has just inflicted on girls and women in no-abortion states. Not only are they denied decision-making over their bodies, but those who miscarry risk dying when doctors can’t legally treat them. Given this cruelty, no draconian legal ruling seems implausible.
With legal marriage, Carole and I gained 1,138 federal rights and protections, including, significantly, hospital visitation. What if one of us landed in the hospital, we’d worried, and the other – not considered next of kin – was refused visits? We wouldn’t be able to make health care decisions for each other. The prospect had filled us with fear.
Following Obergefell, I underwent a series of surgeries. Whenever I lay in the hospital for a week at a time, we were grateful Carole could stay with me, no questions asked. No one refuses a wife. Her presence, as well as her daily advocacy, helped me survive. Where would we be if she hadn’t been allowed this privilege?
More recently, as friends with Covid have entered ICUs, we’ve noticed that hospitals only grant those few precious minutes of visitation to close family members. Each time, we’re grateful for our married status.
If the Supreme Court repeals Obergefell, which relied heavily on Loving as the basis for freedom to choose a marriage partner, I dread a return to legal limbo. What would happen to our marriage, after Carole’s and my 41 years together?
We could end our lives like the “spinster roommates” of yore, subject to the whims of the other’s biological family. Legally they could be entitled to make all decisions about our beloved if she were incapacitated – and possibly our own futures if, for instance, they demanded a sale of our home.
After all, if as the justices ruled, abortion is not a right because it is not “deeply rooted in this Nation’s history and tradition” not written in the Constitution, then all of our other unwritten rights are at risk too, including the right to decide who we choose to marry – including when that person is of the same gender. Or a different race.
In fact, Justice Clarence Thomas in his concurring opinion overturning Roe, indicated that not only was the right to abortion not a form of “liberty” protected by the due process clause of the 14th Amendment to the Constitution, but that other rulings that relied on the same reasoning could be revisited.
He cited three landmark cases: Griswold v. Connecticut, that found that married couples had a right to contraception; Lawrence v. Texas, a 2003 case invalidating sodomy laws that had made homosexual relations a crime; and Obergefell v. Hodges.
He specifically did not mention Loving, although one US senator did – telling reporters after the Court invalidated Roe that he supported allowing the states to decide on the legality of interracial marriage. (He later retracted those remarks, saying that he’d misunderstood the question.) There is no small number of legal observers who has said that the landmark 1967 ruling could be at risk, if the court applies the same reasoning to interracial marriage that was used in the abortion ruling.
If the Court were to overturn Loving, what could happen to my biracial son’s interracial marriage? Are we going to recreate a labyrinthine system of octoroons and quadroons, based on an illusory percent of “colored blood”? Who could my three biracial grandchildren legally marry?
Thankfully, we have a legacy in this country of citizens rising to the moment. Last month, voters in socially conservative Kansas upheld their “Free State” nickname, earned when they entered the Union in 1861 as a free, rather than slave state. By a margin of 18 percentage points, they affirmed their state constitution’s abortion rights, and gave us all a roadmap to protection.
The vast numbers of us in same-sex and/or interracial marriages, supported by our allies, need to speak up. We can preempt any further Supreme Court madness by demanding our state legislators immediately add protection for interracial and same-sex marriages to our constitutions.
There is even some hope that our federal lawmakers may take action: Democrats in Congress recently proposed and passed, with the support of 47 Republicans, the Respect for Marriage Act – which provides “statutory authority for same sex and interracial marriages” specifically citing in its text the Obergefell and Loving decisions.
The measure would protect against such regression. But passage in the Senate is far from assured. As Loving affirmed, we need to secure our personal right to choose the people we love without interference.
During the complicated years of 2008-2015 when Carole and I were legally married in California but not recognized nationally, we traveled with our marriage certificate in our suitcases. Once we flashed it at a New York car rental clerk who had refused us a spousal second-driver benefit (It worked).
Mostly, however, we carried it for more dire situations when we needed to prove our legal bond. Although such a patchwork of marriage affirming states might be difficult to navigate, if Congress fails to pass the bill, sanctuary states might be our best option.
The recent Supreme Court repeal of Roe – and the risk to other constitutionally protected rights like interracial marriage and same sex marriage – threatens to return us fully to the 1950s.
I wonder and worry: Are they coming for my marriage next? My wife and I are determined to stand in the sunshine where we belong—together. If the right to marry the person you love isn’t a guaranteed personal liberty, what do any of our other freedoms mean?
Twice, I’ve survived the legal marital shadows, depending on the goodwill of others for my family’s safety. Twice, I’ve felt deep relief when my marriages were given the recognition they deserved. I’m not ready to face this a third time. I won’t go back.