This year, my husband and I will celebrate a milestone anniversary. I’m so very happy that, at 35, I found the one who saw me as I truly am and still committed to marrying me three years later. Now, almost 10 years in, the foundation that once felt rock solid now seems like it might have been built on shifting sands.
Before you get the wrong idea about our marriage, let me assure you, Chip and I are doing better than fine. We’re more in love each day, which seems impossible, but as the song goes, “I love you (him) more today than yesterday.” Our little family of three loves hard, plays hard and works hard. We love to laugh, serve one another and others, while aiming to make our corner of the world safe and inclusive.
However, the law that guarantees our marriage — an interracial marriage — may be under threat. Some folks might say, “Adrienne, there’s no way Loving v. Virginia will be overturned.” That, you’ll remember, is the 1967 US Supreme Court case that deemed anti-miscegenation laws unconstitutional, ending prohibitions on interracial marriage and handing a major blow to segregation. But that history-making case could very well be overturned with a reinterpretation of the due process clause of the 14th Amendment.
As you might imagine, this is more than a bit unsettling because the due process clause prohibits states from depriving Americans of “life, liberty, or property, without due process of law.” Historically, the court has used this clause to protect rights not explicitly listed in the Constitution, otherwise known as substantive rights, arguing that these are liberties that cannot be infringed upon.
But in June, in his only concurring opinion to Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas argued against this longstanding interpretation, contending that “any substantive due process decision is ‘demonstrably erroneous,’” and that “we have a duty to ‘correct the error’ established in those precedents.” This is troublesome and confusing because Thomas did not include Loving v. Virginia in his analysis of him, which also uses the due process clause of the 14th Amendment.
To be transparent, I know Justice Thomas. I was a US Supreme Court intern while attending college. Although our world views and political ideologies often seem diametrically opposed, I knew him to be incredibly kind to all court employees. He worked closely with young people in the community and met regularly with various civic groups. When I left law school, I spent time talking to myself about what might come next. He even felt my husband and I crystal tumblers for a wedding gift. We have common ground in our shared humanity — he is a complicated person, as am I — which is, in part, what makes his opinion of him so difficult for me to understand.
Justice Brett Kavanaugh wrote a concurring opinion, splitting from Thomas, indicating that “Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.” In contrast, dissenting Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan cautioned that “no one should be confident that this majority is done with its work” with regard to reversing prior precedent.
Justice Samuel Alito argued that the dissenting justices were building “unfounded fear” that the Dobbs decision would jeopardize other rights. Yet these fears are not unfounded to me or the millions of other people they directly impact, specifically in the case of Loving, which along with Roe affirmed the constitutional right to privacy.
Perhaps an even deeper fear emerging now is that states could dismantle protections for interracial or same-sex marriage. If you think this isn’t a real issue, just look back to 2009 in Tangipahoa Parish, Louisiana, where a white justice of the peace named Keith Bardwell refused to issue a license or preside over the wedding of Beth Humphrey, also white, to Terence McKay, who is Black. Bardwell served in his role as him for more than 30 years and contended that he would not perform the ceremony because of his concern for the future of the couple’s children. Keep in mind, this is during the time Barack Obama was in the White House — the first interracial president of the United States, whose ethnic heritage was both Black and white.
Until recently, I believed this was an issue settled in the court, settled in history — in fact, the very year my husband was born. Now it seems we’re not so far from a time when the fears of many Americans could become a reality. Will I next have to defend my marriage?
Adrienne Andrews is the vice president of Equity, Diversity and Inclusion at Weber State University. Twitter: AdieAndrewsCDO