The judge on the front lines of culture war
Massachusetts' top justice made history, and drew fury, with Tuesday's ruling on gay marriage.
Margaret Marshall likes to say she's lived through two revolutions - the overthrow of apartheid in her native South Africa and the advancement of women in the US. Now the chief justice of the Massachusetts Supreme Judicial Court is on the forefront of a third: the redefinition of the family.
The opinion that Justice Marshall authored Tuesday, ruling that the state constitution entitles same-sex couples the right to wed, has quickly become a pen stroke heard around the world.
It is likely to embolden gay-rights groups to push for the recognition of same-sex marriage in courts across the nation. It is spurring a backlash among social conservatives, who are preparing their own legal briefs and legislation to ensure that marriage remains something just between a man and a woman.
It is injecting a new dynamic into the presidential race, and renewing debate over whether the American judiciary is too politicized. In short, this relatively unknown Massachusetts jurist who likes gardening and, by her own admission, is happiest when snorkeling in the ocean, has thrust herself into the middle of the nation's culture war. This decision "will encourage developments in other states," says Alan Wolfe, a political scientist at Boston College. "It will be similar, if less intense, to Roe v. Wade, which nationalized the abortion issue."
For all the ruling's import, however, analysts say its author probably won't gain the renown of jurists like Warren Burger, chief justice of the US Supreme Court during Roe v. Wade. Still, her career suggests someone who is no less willing or able to tackle difficult, controversial issues that may resonate for generations to come. [Editors note: The original version incorrectly stated who was chief justice of the US Supreme Court during Roe v. Wade.]
In writing the court's majority opinion, Marshall has brought Massachusetts further than any other state on the gay rights front. Colleagues say the decision is not a radical shift for her, however. It is in line with the importance she has always placed on an individual's rights.
Marshall was raised in South Africa and came of age fighting against systematic segregation, which many say has formed her notions of freedom and fairness as a judge.
"She is a person who believes strongly in individual rights," says Neil Rudenstine, the former president of Harvard University, who hired Marshall as general counsel there before she was appointed an associate justice of the high court in 1996. "The experience of seeing so many people deprived of rights has given her a special sensitivity."
This theme has surfaced throughout Marshall's career - as a private lawyer, later at Harvard, and now as a judge. And supporters have hailed this most recent ruling for its articulateness and focus on the state constitution, and for the absence of divisive language that often accompanies the gay marriage debate.
"The decision resonates with concepts of fundamental rights and civil rights," says Richard Van Nostrand, president of the Massachusetts Bar Association. "[Marshall] is one of the most eloquent and thoughtful individuals I have ever met."
Even critics of the ruling say Marshall's opinion is compatible with the recent Supreme Court decision striking down the Texas sodomy law. "There is a logical consistency to the argument," says Matthew Spalding, director of the Center for American Studies at the Heritage Foundation. But, he adds, "only if you accept the premise that the traditional definition of marriage is irrational and is based on prejudice and stereotype."
Analysts say it is not easy to characterize the ideology of the Supreme Judicial Court, which was split on the decision 4 to 3. In some cases, it has deferred to the legislature rather than taking an activist role. Four years ago, for instance, the court ruled that domestic partners in Boston could not receive employee benefits because state law prohibited it.
But in other cases relating to questions of family law, the court has been among the nation's most liberal. Last year it was the first high court in the country to rule that children conceived posthumously may be considered legal heirs. And the court was among the first to bestow visitation rights on a lesbian woman who had helped raise her partner's child before they broke up.
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