Opinion: Twice, I lived in the marital shadow. The Supreme Court will never fire me
Editor’s note: Joan Steinau Lester is the author of six books, including the most recent « Loving Before Loving: A Marriage in Black and White. » The opinions expressed in this commentary are his own. Read more opinion on CNN.
In 1981, long before same-sex marriage was legalized, I made a commitment to live the rest of my life with Carole, the woman I loved. But when Carole and I introduced ourselves to friends, we had no language to describe our relationship.
If I called him my « partner », many assumed a business partner. « Lover » felt too intimate, « life partner » too awkward, « special friend » an abhorred holdover from a closed time.
« Woman » would have made our relationship absolutely clear, but it was a word we were denied at the time.
The penalties for this extra-legal union are severe: Carole’s beloved father, who is a Catholic, refuses to speak to her because of her denominational objections. We both faced potential job losses if we found out. Carole, who worked for the federal government, had to keep a particularly low profile since we had heard of lesbians being fired once they were “discovered”.
Even my children and I were in danger. Fortunately, no parent sued for custody at a time when lesbian mothers were usually deemed « unfit » for parenthood.
Eventually, Carole and I bought a house together and combined our finances. Yet our accountant had to artificially untangle our taxes each year to produce “single” returns.
It took a Supreme Court decision, Oberefell in 2015, to nationally recognize this same-sex marriage. When we heard the news, tears of joy and disbelief rolled down our cheeks. But also, a sense of security came over me. No one could take my wife away from me now. We were safe.
It was a feeling that was already familiar to me since I had experienced it years earlier with the Supreme Court. Love against Virginie decision. This is because my relationship with Carole was actually the second time my most intimate connection was forbidden. It was also the second time it took sweeping action from the Supreme Court to grant me the freedom to love whoever I wanted.
In 1962, I had married a black man, and because I am considered white, our union was then considered illegal by 21 states.
In our seedy Manhattan basement apartment, legal status didn’t matter. But as civil rights activists willing to travel south for voter registration drives, we were deterred by their anti-miscegenation laws. When my husband Julius joined SNCC, the Mississippi Student Nonviolent Coordinating Committee — where we risked immediate arrest or worse — I had to stay in New York.
Even in Manhattan, the racism was intense: our landlord who lived upstairs would yell racial slurs at Julius every time she saw him. For five years, we endured his vile harangues, shouted from a second-story window every time he entered or left the building.
But in 1967, the atmosphere changed significantly with the Magnet decision, when the Supreme Court affirmed the right of everyone to marry the partner (of the opposite sex) of their choice – regardless of their so-called « race ». Finally, our marriage – of which both sets of parents had refused their approval – was legal in the United States.
The decision conferred social as well as legal legitimacy: white strangers who had felt free to grill me in public about our children, asking me, « How did they get so tanned? » shortened their questions. Loving has normalized us. When diners in restaurants looked at our unusual family composition (interracial unions accounted for only 3% of marriages in 1967), I began to look back.
Over time, social pressure took its toll. Of my few interracially coupled friends, no couple survived the decade. After eight years, our marriage also dissolved.
As unlikely as a return to the frontMagnet or pre-Oberefell The days may come, we see the torment this Supreme Court has just inflicted on girls and women in abortion-free states. Not only are they denied decision-making over their bodies, but those who miscarry risk dying when doctors cannot treat them legally. Faced with this cruelty, no draconian court decision seems implausible.
With the legal marriage, Carole and I gained 1,138 federal rights and protections, including, significantly, hospital visits. What if one of us ended up in the hospital, we were worried, and the other – who is not considered a next of kin – was denied visitation? We would not be able to make health care decisions for each other. The prospect had filled us with fear.
Next Oberefell, I underwent a series of surgeries. Each time I stayed in the hospital for a week at a time, we were grateful that Carole could stay with me, no questions asked. No one refuses a woman. His presence, as well as his daily advocacy, helped me survive. Where would we be if she hadn’t had this privilege?
More recently, as friends with Covid have entered ICUs, we have noticed that hospitals are only granting those precious few minutes of visitation to close family members. Each time, we are grateful for our married status.
If the Supreme Court overturns Oberefellwhich relied heavily on Magnet as the basis of the freedom to choose one’s spouse, I fear a return to legal limbo. What would happen to our marriage, after the 41 years of Carole and me?
We could end our lives like the « single roommates » of old, subject to the whims of each other’s biological family. Legally, they might have the right to make all the decisions about our beloved if she were incapacitated – and possibly our own future if, for example, they demanded the sale of our house.
After all, if, as the judges ruled, abortion is not a right because it is not « deeply rooted in the history and tradition of this nation » and is not enshrined in the Constitution, then all of our other unwritten rights are also at risk, including the right to decide whom we choose to marry – including when that person is of the same sex. Or a different breed.
In fact, Justice Clarence Thomas, in his concurring opinion, overturning deerindicated that not only was the right to an 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 reconsidered.
He cited three notable cases: Griswold v. Connecticut, who concluded that married couples had a right to contraception; Lawrence v. Texas, a 2003 case striking down sodomy laws that had made same-sex relations a crime; and Oberfell v. Hodges.
He specifically didn’t mention Loving, although a US senator did – telling reporters after the court struck down deer that he supported allowing states to decide the legality of interracial marriage. (He later retracted those remarks, saying he misunderstood the question.) Not a few legal observers have said that the landmark 1967 decision could be in jeopardy, if the court applies the same reasoning to interracial marriage that was used in the abortion decision.
If the Court overturned Magnet, 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 percentage of “colored blood”? Who could my three biracial grandchildren legally marry?
Fortunately, we have a legacy in this country of citizens who live up to the times. 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 a slave state. By an 18 percentage point margin, they affirmed their state constitution’s abortion rights and gave us all a roadmap for protection.
The vast number of us in same-sex and/or interracial marriages, supported by our allies, need to speak up. We can forestall any further Supreme Court folly by demanding that our state legislators immediately add protections for interracial and same-sex marriages to our constitutions.
There is even some hope that our federal lawmakers will take action: Democrats in Congress recently proposed and passed, with the support of 47 Republicans, the Respect for Marriage Act – which provides « statutory authority to same-sex and interracial marriages » specifically citing in its text the Oberefell and Magnet the decisions.
The measure would protect against such a regression. But the passage to the Senate is far from certain. As Magnet affirmed, we must guarantee 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. We once showed it to a New York rental car clerk who had denied us a second driver benefit for the spouse (it worked).
Most of the time, however, we wore it for more serious situations when we needed to prove our legal connection. While such a patchwork of marriage-affirming states can be difficult to navigate, if Congress fails to pass the bill, sanctuary states might be our best bet.
The recent repeal of the Supreme Court deer — and the risk to other constitutionally protected rights like interracial marriage and same-sex marriage — threatens to take us all the way back to the 1950s.
I wonder and worry: Will they come for my wedding next? My wife and I are determined to stand under the sun where we belong – together. If the right to marry the person you love is not a guaranteed personal freedom, what do our other freedoms mean?
Twice I survived under the shadow of legal marriage, depending on the goodwill of others for the safety of my family. Twice I felt a deep sense of relief when my marriages received the recognition they deserved. I’m not ready to face this a third time. I won’t be going back.