Massachusetts decision written by antiapartheid veteran
November 25 2003 1:00 AM ET
The author of the landmark Massachusetts decision that gave the American gay rights movement an historic victory last week came of age in South Africa in the midst of its long battle for equality. Chief Justice Margaret Marshall, the first immigrant and first woman to lead the state's 313-year-old Supreme Judicial Court, began her journey to the Massachusetts bench in South Africa. She was a white student leader of the anti-apartheid movement in the 1960s, a time when defiance led to bloodshed. "Justice is not hypothetical to me," Marshall, 59, said earlier this year.
Marshall was first appointed to the bench in 1996, after four years as general counsel and vice president of Harvard University. She became chief justice three years later. Her coming of age in the crucible of apartheid has had a profound influence on her actions as leader of the oldest appellate court in the Western hemisphere, according to her colleagues and legal observers, and can be seen in the November 18 decision granting gay couples the right to marry. "She is just passionately committed to the idea that second-class citizens and a permanent underclass is not only cruel to the people who find themselves
at the bottom, but degrading and dehumanizing to those who happen to be at the top," said Laurence H. Tribe, constitutional law specialist at Harvard Law School. "Her experience in South Africa has shaped her as a person and as a judge."
In the first paragraph of the 4-3 majority gay marriage opinion, Marshall states that the Massachusetts constitution "affirms the dignity and equality of all individuals." Later she writes, "It forbids the creation of second-class citizens." Even many of those who disagreed with her ultimate conclusion admired the
legal path she took. "There's no question that the analysis of the legal principals at stake is absolutely brilliant," said attorney Roderick MacLeish, who represented students at Harvard when Marshall was general counsel and who believes the court went too far into an area better governed by the legislature. "It will go down as one of the most significant decisions of the Supreme Judicial Court in the last 50 years."
Other critics, who believe that changing hundreds of years of marriage law will damage the fabric of society, argue that Marshall's decision was not true to her lifelong fight against oppression. "I see this as the height of judicial tyranny, for one justice to so overlook the needs of children for the sake of pursuing her political agenda," said Ron Crews, executive director of the Massachusetts Family Institute. "I'm just astounded by the audacity of her decision."
Even before Tuesday's decision, Marshall was targeted by the opponents of gay marriage in Massachusetts, who filed suit against her in March claiming that she had violated the judicial code of conduct by making appearances before two organizations dedicated to women's rights and one dedicated to gay rights. Marshall has declined interviews since the decision.