The judge on the front lines of culture war
Massachusetts' top justice made history, and drew fury, with Tuesday's ruling on gay marriage.
BOSTON — 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.
The tribunal likely to continue taking on tough issues with Marshall at the helm. Like John Adams, a figure Marshall admires, her willingness to confront challenges and unpopular causes sets her apart, says Joe Vrabel, a lawyer who has known Marshall since she was in private practice. "She shows an ability to do what is right no matter what public opinion says."
Marshall came to the US as a graduate student in 1968 and received a law degree at Yale Law School. She was admitted to the bar in 1976, a year before gaining US citizenship. She quickly became a role model for women - as an early member of the Women's Bar Association in the late 1970s and later by raising money for a major gender-bias study in Massachusetts.
When she was appointed chief justice in 1999, she became the first woman - and immigrant - to lead the state's judiciary, the oldest continuously operating appellate court in the Western Hemisphere.
Marshall has been married to retired New York Times columnist Anthony Lewis for the past two decades. "When Margy and Tony got married, she took on his children, and subsequently her grandchildren as her own," says Betty Vorenberg, a family friend who has known Marshall for the past 25 years. "She has provided a wonderful family."
Despite her busy schedule, Ms. Vorenberg says, Marshall cares for family and friends with a compassion and grace that defines both her professional and personal life. "It is a very moving thing," she says.
She is a voracious reader, which also stems in part from her early years in South Africa, where certain books where banned. At any given time, she once told the Monitor, she keeps 10 to 15 books by her bed. On vacation, she often reads a book a day.
Marshall's career hasn't been without its controversy. When she was appointed chief justice to the state supreme court in 1999, Cardinal Bernard Law accused her of harboring an anti-Catholic bias.
Others said she didn't have enough trial experience. While she is not expected to become a national lightning rod, her recent decision is likely to catapult her onto the national stage, putting her both in the spotlight and the limelight.
Analysts say the case will undoubtedly be cited as other courts decide on gay marriage, and as couples who are married in Massachusetts attempt to claim marital benefits in other states. "This is going to put her in the forefront of some cutting edge issues in the eyes of many who don't know her," says Joan Lukey, a senior partner with Hale and Dorr in Boston and a longtime colleague.
Already Massachusetts Gov. Mitt Romney (R) has endorsed an amendment banning gay marriage in the state constitution, an issue that will come under focus in the next six months as the legislature grapples with how to comply with the ruling.
Critics nationwide have accused the Massachusetts high court of acting as a legislative arm in forcing the redefinition of marriage. Even supporters have said that it could cause a state constitutional crisis between the court and legislature, or hand the GOP an issue in the 2004 election.
"The Massachusetts decision was very irresponsible," says Gary Bauer, the president of American Values, a public policy group. "And quite frankly the four judges are trying to remake an institution that predates the state of Massachusetts, that predates the US, and has been central to western civilization for 3,000 years."
Supporters say that Marshall is poised to survive the maelstrom, however. "She is a very thoughtful, strong person who comes to conclusions slowly and systematically ... with the weight of conviction and the weight of the law behind them," says Dr. Rudenstine. "I think she will hold up very well."
That is not to say the case hasn't posed a major challenge to her, or the other justices on the court. During a brunch last Sunday at Marshall's house - two days before the ruling - Vorenberg was teasing her. "We never discussed the case beforehand ... But she's been so busy taking care of everything," Vorenberg says. "I told her to hurry up and issue an opinion."
• Stacy A. Teicher contributed to this article from Boston.