Pro-gay judge
lauds judicial independence

The chief justice of the highest court in Massachusetts, who led a 4-3 ruling that extended marriage rights to same-sex couples under the Massachusetts constitution in 2003, says the independence of judges may be more important today than when the nation was founded. Margaret Marshall is only the second woman appointed to the supreme judicial court since it was founded in 1692, making it the oldest appellate court in the Western Hemisphere. She also is the first woman to be its chief justice.

Massachusetts is the first and only state to approve same-sex marriage, an issue that prompted 11 other states, including Oregon, to adopt constitutional bans on same-sex unions last November in the 2004 general election. Marshall since has been speaking about protecting judicial independence, especially when rulings may be unpopular. "Judicial independence is not an end in itself. It is a means to an end--a government under the rule of law," Marshall said in a speech Monday at Willamette University in Salem, Ore. "When the rule of law is broken, we have government by opinion poll."

Marshall said courts have a duty to act as a check and balance on unrestrained majorities. After delivering the annual John C. Paulus Lecture at the university's law school, Marshall was asked whether laws against same-sex marriage might eventually be dropped. "Ask me in 16 years; I do not have a clue," Marshall said. "The main thing about having decided a case is that you go on to the next case." But she noted that it was a state court, the California supreme court in 1948, that overturned a ban on interracial marriage nearly 20 years before the U.S. Supreme Court struck down similar bans in 16 states. "State courts are proving grounds for a vast array of problems," Marshall said.

Judges in Massachusetts are screened by a committee, appointed by the governor, and confirmed by the governor's council, an elected body. But unlike their counterparts in Oregon and elsewhere, they do not have to run for election on their own. Marshall said that provision is in the original 1780 Massachusetts constitution, which calls for judges "as free, impartial, and independent as the lot of humanity will admit." It is listed under the state bill of rights, which Marshall said John Adams and others drafted as a safeguard against abuses by the British colonial government. (AP)