Legal Affairs

Current Issue


printer friendly
email this article
letter to the editor

space space space

May|June 2004
A Bold Stroke By Emily Bazelon
Medea's Shadow By Charlotte Faltermayer
The Sword of Spitzer By Nicholas Thompson

A Bold Stroke

When Margaret Marshall was a corporate lawyer, her actions were colored by caution. But in her opinion ordering Massachusetts to allow gay marriages, the chief justice of the state's supreme court has shunned politics and stood on principle. Will she be remembered as the judge who jeopardized her court for a cause?

By Emily Bazelon

At the close of a dinner in her honor in February, Margaret Marshall, the chief justice of the Massachusetts Supreme Judicial Court, stood in front of the podium in a well-appointed dining room at New York University Law School, her white hair adding inches and style. She wore a tailored black pantsuit, black heels, and double strands of pearls around her neck and one wrist. Her offer to take a few questions was greeted by a moment of shy silence. "My recipe for lobster?" she asked with a smile.

A young NYU law professor, Doni Gewirtzman, tentatively raised his hand. "What's happening now in Massachusetts is a fascinating study in law and politics," he said. "I'm interested in your thoughts about the political consequences of your decision."

Gewirtzman was referring to Goodridge v. Department of Health, the decision handed down the previous November by Marshall and a bare majority of her court ordering Massachusetts to perform gay marriages beginning in May. Five days before the NYU event, in a follow-up to Goodridge, the same majority had rejected the legislature's attempt to offer gay couples civil unions instead of traditional nuptials. Large rings on each of Marshall's hands caught the light as the chief justice, who is 59, framed her answer to Gewirtzman by slicing the air with brisk strokes.

"The very first case heard by the Massachusetts Supreme Judicial Court involved slavery," she said. "A man by the name of Quock Walker came to the court in 1780." Walker was a slave who had run away to work for a neighbor. When his master recaptured him and beat him, he sued for assault. To win his case and hold the master accountable, Walker had to convince the court to declare him free. "He said, 'Look, it says here in your state declaration of rights: "All men are created equal," ' " Marshall said. "So the question for the court was: What are you going to do with slavery in 1780? 'Excuse me, Judge, it says equal.' " Marshall was miming Quock Walker by pointing to her palm as if the words were written there. "Judge Cushing said, 'You have curly hair and thick lips, but you look like a man to me.' " Marshall paused and her voice shook a bit. "Do I think that was a political decision? I think it was a constitutional decision."

Marshall tells the story of Quock Walker often. She had recited a similar version to me three weeks earlier, when I first met her, in her chambers in Boston. She uses the story to make her case for the virtues of expansively interpreting her state's constitution, for applying a general principle stated in the text in a way that its framers didn't exactly have in mind. The story is about a court's bold move to stamp out the evils of slavery "with one stroke of the pen of a judicial opinion," as Marshall put it to me.

The story is also partly a myth, though not one that Marshall made up. The tale has been handed down as court lore, based on notes that Chief Justice William Cushing made to himself during the proceedings. But most of the historians who have studied the case have concluded that the Massachusetts court didn't end slavery with a righteous bang. Instead, the practice lost popular support and gradually withered away. Slaves simply wandered off, won their freedom from sympathetic juries, or were given it by their masters. No grand stroke of the judicial pen was necessary.

But the story as Marshall tells it is well suited to justifying her court's decision to require gay marriage. The myth of Quock Walker celebrates a court that led the public to a watershed conclusion that it should have, but hadn't, reached on its own. And it stands on the old and hallowed ground of ending slavery—safer territory than more recent activist decisions like Roe v. Wade or the Massachusetts court's 1980 decision to abolish the death penalty. Safe ground is the kind that Marshall prefers to stand on. "I'm a conservative judge, in the sense of conserving institutions and being extremely cautious in every decision I make," she told me.

That may sound like wishful thinking from the person whose insistence on full marriage rights for gays has polarized state and national politics. For conservatives in the usual sense of the word, from President George W. Bush on down, the Massachusetts high court's decision is a perfect example of liberal judging run amok. For the liberals gathered at the NYU event, on the other hand, the decision gave Marshall the aura of a hero. When the crowd of 300 gave a standing ovation, it was clearly more for her than for the scholarly speech she had just given about the influence of international courts. After the applause subsided, William Eskridge, a Yale law professor and leading gay rights scholar, stood and bowed slightly to Marshall. "On behalf of the gay and lesbian community," he said, "I want to express immense gratitude for your greatness."

In the wake of Goodridge, then, neither side of the aisle thinks of Marshall as careful and restrained. Up until the gay marriage decision, however, she had been just that. For most of her life, Marshall played by the rules of the establishment. She made her reputation as a lawyer with strong corporate ties and a deft political touch.

Now, though, Marshall's reputation—and the reputation of her court—will turn on a principle, though she's not eager to say which one. She speaks passionately about "the right to be who you are," but she doesn't connect that evolving right directly to gay marriage. Like many judges, she tries to separate the "constitutional" from the "political" by claiming to wall off her judicial decisions from her personal convictions.

Still, Marshall cared enough about the right at stake in Goodridge to put her court on a collision course with the Massachusetts legislature. That's the prerogative of a judge who is appointed rather than elected. To exercise it, however, is to set off a string of reactions and counterreactions, some of which boomerang back at the cause of gay marriage and at the court. Nowhere is that more the case than in Massachusetts, where lawmakers keep the judiciary on a short leash. "Well, we won't be getting a raise this year," quipped state appellate judge Mark Green when I asked him about what the gay marriage ruling meant for him and his colleagues.

Marshall says she doesn't take into account the real-world reverberations of her rulings. "I know it sounds strange," she said. "But I've stopped thinking about broad political questions. You make every decision, and then you move on." But what if nobody else is ready to? Quock Walker's case didn't cause a stir; it didn't even rate a mention in the newspapers of the time. The Massachusetts gay marriage ruling is playing out everywhere—in this year's presidential campaign, in mayors' offices from coast to coast, in three Massachusetts constitutional conventions, and in the kitchens and living rooms of Americans, many of whom are ready to protect gay people from losing their jobs but are unsure about seeing them walk down the aisle.

Stated or not, Marshall's sense of principle and her imperviousness to her decision's ramifications give the Goodridge ruling striking authority. Had she set her course by the political acumen that has usually guided her, she probably wouldn't have written a history-making gay rights decision.

MARSHALL'S OFFICE HAS A WALL OF WINDOWS that look out on Boston's King's Chapel, a place of worship that dates to the colonial era. (Paul Revere recast its bell after it cracked in 1814.) I visited Marshall in her office two months after she had issued the Goodridge decision. She was animated, gracious, and eager to describe the colonial landmarks outside her window. "We all take the places in which we live so much for granted," she reassured me when I confessed to having lived in Boston without learning much about its history. I'd been admonished by the court's public relations officer not to prolong the interview for more than an hour, but Marshall seemed happy to field questions for twice that time. She warned me that she tended to give long-winded answers and told me to cut her off by making a timeout sign with my hands.

One topic Marshall would not talk about, however, was Goodridge. One of the strange things about judges is that even when they issue decisions that move the earth, they typically decline to explain how they arrived at their conclusions, thinking their written opinions should speak for themselves. Marshall said she labors over her opinions because she's "not a particularly good writer." Goodridge, however, is forceful and clear, a decision that you don't need to go to law school to follow. In it, Marshall laid out her argument for treating marriage as a vital civil right. "Without the right to marry—or more properly, the right to choose to marry—one is excluded from the full range of human experience and denied full protection of the laws," she wrote.

Much of the opinion's moral weight is borne by a historical analogy between gay marriage and interracial unions. To make this connection in her Goodridge opinion, Marshall didn't reach back to Quock Walker, but she did take care to note that the long history of laws barring marriage between white and black Americans didn't matter when the California Supreme Court struck down such a statute in 1948. As Marshall pointed out, the California ruling, in Perez v. Sharp, predated the U.S. Supreme Court's better-known decision, Loving v. Virginia, by 19 years.

The parallel between Perez and Goodridge is not a perfect one, however. Behind the California decision stood the equal protection clause in the 14th Amendment, which Congress passed to ensure full citizenship for black Americans after the Civil War. The Massachusetts Declaration of Rights, with its ringing statement that "All people are born free and equal," has strong guarantees of liberty and equality. But no state or federal law passed expressly to guarantee gay people full rights stands behind Goodridge.

Still, by invoking Perez, Marshall reached for another instance when, long before a national court dared to address the issue, a state court had the gumption to fight the good fight. Then, as now, marriage was off limits to a group of people based on "a single trait."

The other court that holds moral sway over Marshall's decision, though it's never mentioned in Goodridge, is the high court of Marshall's native South Africa. Established in 1995, South Africa's court has been a strong defender of human rights, including the rights of gays. Marshall is an advocate of mining the work of foreign courts—that was the topic of the speech she gave at NYU—and friends and close readers see that enthusiasm reflected in Goodridge. "It is like a South African decision," said Martha Minow, a Harvard law professor who has known Marshall for 15 years. "Beginning with the use of the word 'scar' there's a directedness about injury and the emotional dimensions of injury," Minow said. ("The marriage ban works a deep and scarring hardship on a very real segment of the community," Marshall wrote in Goodridge.) "There's a real sense the whole community is affected by the treatment of any of its members," Minow continued. "And there is her attention to dignity, which comes right from the South African constitution."

Marshall grew up in the steel-and-coal town of Newcastle, long before that constitution was penned, in a family that had been in South Africa for generations. Her father was an industrial chemist and her mother was a homemaker who did some work for the town newspaper. By Marshall's own account, her family had no interest in challenging the status quo. Her activism, then, was self-taught. She spent her college years fighting apartheid, beginning when she was 19. As a leader and then president of the National Union of South African Students, or NUSAS, between 1964 and 1966, Marshall dove into the struggle as blacks and some whites rebelled. Some of them used the tools of strikes, protests, and sabotage. Marshall's role was different: She helped lead vigils, collect signatures to oppose discriminatory laws, and raise money for black families in which a parent had been arrested.

It wasn't the sort of resistance that at the time led to prison or exile, but even standing up to the government within the limits of the law carried risk. Marshall's phone was tapped and she was followed by the police. "The ex-NUSAS types are determined, mature, resolute," said Albie Sachs, a former activist who is now a justice on the South African Constitutional Court and has known Marshall since the 1960s. "The NUSAS experience toughened one up. It wasn't a lovely walk in the student park."

In 1968, concerned that Marshall's work for NUSAS would endanger her, a group of white activists raised the money to send her to study abroad. Marshall enrolled at Harvard and got a master's degree in education. At first she expected to return to South Africa. But the NUSAS presidents who succeeded her were being arrested. For a time, Marshall traveled to American churches and schools, where she urged economic sanctions against South Africa. But by the time she entered Yale Law School in 1973, she had decided to stay in the United States, and her anti-apartheid work tapered off.

After graduation, Marshall went to work at the Boston firm of Csaplar & Bok, where she built up a practice in intellectual property. She made partner in 1983. For the next decade, Marshall's accomplishments were hardly those one would expect of a social activist—or, for that matter, a judicial one. In 1986, she successfully represented the Massachusetts Taxpayers Foundation, a conservative antitax group, in a suit challenging the constitutionality of a graduated tax cut for low-income families. In 1992, she worked for a consortium that wanted to stop a ballot referendum that would require businesses to disclose their state tax payments. The ballot work was pro bono: Marshall lost, but after donating $75,000 worth of her time to a cause close to the corporate heart.

Marshall hadn't abandoned community service, but during her years at Csaplar & Bok and later as the first female member of the litigation group at Choate, Hall & Stewart, she promoted volunteer work as a tool for advancement as well as an end in itself. According to Mitchell Kaplan, a partner at the firm, when Marshall looked out for young women, she coached them in "things you need to think about to make your way in a large law firm. Her major pitch was that young lawyers needed to be out in the community doing things, like the bar association, so they'd be contributing and also raising their own profile."

Following her own advice, she rose in the ranks of the Boston Bar Association. As president from 1991 to 1992, she pushed for family-friendly policies at a time when that cause didn't have widespread support, earning the gratitude of other women lawyers. Marshall doesn't have children of her own, but she takes seriously the needs of families, as all of her former law clerks with whom I spoke attested. "Because I don't have children, I've felt that I could be a very strong advocate for the necessity of having institutions recognize how important they are, without a sense that I myself would benefit," Marshall said.

Except indirectly. Marshall's respect for families and the attention she has lavished on other people's children are important parts of her charm and, by extension, her abilities as a politician. This is not to say that her gestures aren't genuine. Everyone has a story about Marshall's warmth—about the time she spent an afternoon playing in a hotel swimming pool with the 2-year-old daughter of her opposing counsel, or made sure to thank by name a trio of musicians hired to play at a bar association dinner. These are stories about kindness and about political skill. "She has this knack—I don't know at what cost to herself—of making people feel like she is their best friend," said Alice Richmond, a Boston lawyer who has known Marshall for 20 years. "She's as successful as she is because she is smart and able, but also because she has this knack of making people feel comfortable and important."

MARSHALL'S PEERS MARVEL AT HER TALENT for self-advancement. In 1991, when Neil Rudenstine became president of Harvard, he asked Marshall's help in identifying talented applicants for the job of university general counsel. Marshall called some candidates, in particular women, and urged them to apply. Rudenstine interviewed a few people. Months passed and the position went unfilled. Then Marshall got the job.

As Harvard's top lawyer, Marshall was perceived as loyal and effective. She is credited with helping to steer the university through the difficult period when Rudenstine, citing exhaustion and said to have had a breakdown, took a three-month leave of absence. As was the case during her years of corporate work, at Harvard Marshall put her establishment duties before anything else. In at least one instance, this meant choosing between her loyalty to the university and the plight of a student from her native country.

In 1992, a black South African undergraduate named Inati Ntshanga went to a dormitory basement during winter vacation to pick up dirty linens, part of his on-campus job. He was stopped by four Harvard police officers who asked to see his student identification. When Ntshanga said he didn't have his ID card with him, one of the officers asked if he had a welfare card instead. Then a fifth officer, with whom Ntshanga had had a run-in a month earlier, came into the laundry room. Ntshanga expected her to get him off the hook by saying that he was a student. But the officer said she didn't know him. Ntshanga was arrested for trespass, breaking and entering, and possession of burglary tools (the keys he'd been given to get into the building). A prosecutor later dropped the charges.

Ntshanga didn't want to make a stink, but he did want the university to acknowledge that he'd been treated badly. Harvey Silverglate, a defense lawyer who has taught at Harvard and made a cause of challenging the fortress mentality of universities, wrote to Marshall on the student's behalf. Marshall assigned a university lawyer to investigate. Ten months later, the police were cleared of any wrongdoing. Silverglate complained that the investigation was a whitewash. There is no written record of the inquiry and the lawyer who conducted it has left the general counsel's office, according to Harvard.

At the time, Marshall's office was in the middle of a bruising contract fight with the Harvard police union. Marshall agreed to meet with Ntshanga, to whom she was sympathetic, attentive, and gracious, Silverglate said. But she declined to intervene on the student's behalf. Silverglate thinks the decision was a calculated one. "Margie's institutional loyalties were reigning supreme," he said. "I suspect she knew the student was telling the truth and that the Harvard police were in the wrong. But the contract negotiations were in full swing and it wasn't a good time for her to question the veracity of a Harvard police officer."

When I asked Marshall about Silverglate's accusation, she pressed her lips together and tapped a foot against her chair, the only evidence of anger I saw in the hours I spent with her. "That's outrageous. That's really outrageous," she said. "I can't remember the facts. But the one thing I do know is that university policing is a very difficult job. When I talked to the university community as general counsel, I'd use this anecdote: There's a police officer assigned to the library, and he sees a man wearing old clothes and bedroom slippers. Does he ask to see an ID? What if the man turns out to be a faculty member? Would the officer be wrong to ask? I think the answer is no." Whatever the merit of Marshall's argument, the undercurrent is that being a black South African got Ntshanga nowhere with her. Goodridge may hearken back to her days of fighting injustice in her native country. But with Harvard's interests to protect, her calculus seems to have been a different one.

MARSHALL SAYS THAT SHE DIDN'T HOPE OR PLAN to step from Harvard to the bench. "From the moment I went to Harvard, if I'd thought about being a judge, I put that to rest," she said. That seems implausible. Three years after she took the Harvard job, during the Clinton Administration, a vacancy opened on the First Circuit, the federal appeals court headquartered in Boston. Marshall put her name in and reportedly lobbied hard for the job. She didn't get it. When I asked how her effort to get the First Circuit seat squared with her claim that she hadn't entertained thoughts of a judgeship, she paused for a moment. "How could you not be interested?" she shrugged.

The following year, 1996, brought the retirement of Paul Liacos from the Massachusetts Supreme Judicial Court (the SJC, to locals). It was up to then-Governor William Weld, a Republican, to fill the vacancy. His first appointment to the court had been Charles Fried, a star conservative legal scholar who was solicitor general during the Reagan Administration. But Weld took liberal stances on social issues like abortion, and, as he said to me with a chuckle, he likes being "mischievous." At the time he was also campaigning for a senate seat against John Kerry, who'd attacked him for supporting conservative U.S. Supreme Court nominees like Clarence Thomas. To fill Liacos's seat, the governor was looking for a woman or a minority candidate who could blunt Kerry's attack. He tried to woo Rya Zobel and Patti Saris, both federal district judges in Boston, and Wayne Budd, an African-American former U.S. attorney. Each of them turned him down.

The governor's next short list included Marshall. He knew her personally through her husband, the writer and longtime New York Times columnist Anthony Lewis. He admired her record of activism in South Africa. He liked her "spirit and spunk." He wanted to appoint judges with "some sand in them." In September, Weld announced Marshall's nomination, praising her "passion for justice"—and, in a nod to the business community, her efforts to promote a "job-creating economy." But the judgeship wasn't a done deal. Some judges and lawyers muttered about Marshall's relative lack of experience as a litigator, not to mention on the bench. Some African-Americans were furious that Weld had passed up the opportunity to appoint the state's first black justice. Led by the Boston chapter of the NAACP, a group marched in protest up the statehouse steps to the governor's office, singing "We Shall Overcome." "It is a regrettable day in the history of Massachusetts when a white person from South Africa is appointed to the SJC before any black person," said Frederick Brown, a state appeals court judge.

Before the opposition could snowball, Marshall rallied. The lawyers she'd befriended and mentored pitched in; so did her contacts in the business community. Her trump card was a letter faxed to her confirmation hearing from Johannesburg, in which Archbishop Desmond Tutu and other prominent South Africans gave her their strong support. Marshall was easily approved by the eight-member Governor's Council that votes on state judicial nominations.

The court's chief justice, Herbert Wilkins, announced his retirement three years later. By then another Republican, the career politician Paul Cellucci, had succeeded Weld as governor. John Greaney, a justice with a dozen years on the SJC, was seen as the heir apparent to Wilkins. But Cellucci saw a way to make a splash by appointing the court's first female chief justice. He passed over an indignant Greaney to tap Marshall.

Again, the nomination wobbled. In 1993, a Catholic law professor at Harvard, Mary Ann Glendon, had written a letter on university stationery strongly opposing abortion rights. In her role as general counsel, Marshall asked Glendon to stop sending out the letter, saying that its political content could threaten the university's tax-exempt status. With the support of the law school's dean at the time, Robert Clark, Glendon challenged Marshall, pointing out that professors often used Harvard resources in support of liberal causes. When Cellucci picked Marshall for chief justice, Cardinal Bernard Law of Boston wrote to the governor about his concern that Marshall's treatment of Glendon left her "open to the serious charge of anti-Catholicism."

In a state with three million Catholics, Marshall briefly seemed doomed. The Boston Globe warned that the nomination risked becoming an "open embarrassment." Instead, it was Law who was outgunned. "She had the old girls' network going for her," said Kathleen Dias, the administrator in charge of judicial nominations for the Weld and Cellucci administrations. "It was amazing to see these powerful women in Boston get together and say, 'Okay, what do we need to do?' "

Marshall's supporters lined up a parade of heavyweights to testify at her confirmation hearing. The biggest catch was Thomas Finneran, the Democratic speaker of the statehouse, Boston wunderpol, and staunch pro-life Catholic. Marshall signaled her regard for Finneran, whom she didn't know personally, by calling him to ask for his support. There's a sizeable gap between the justice's Cambridge milieu and the Dorchester roots of the speaker. With her South African accent, Marshall sounds like a cross between British aristocracy and Elmer Fudd—think "pwiviwidge" for "privilege." Finneran, on the other hand, talks like a guy from Boston. But she apparently won him over: Finneran was so enthusiastic about Marshall that he made sure to poke his head between her and Cellucci for a photo op on the opening day of the hearing. To the church and the public, Finneran promised that Marshall would not be an abortion rights "activist." Cardinal Law spoke with the justice by phone and professed himself reassured.

In October 1999, Marshall became one of 13 women at the helm of a state supreme court. She'd risen to the top of the Massachusetts judiciary with the support of two Republican governors and a Democratic legislature. "I've met a lot of politicians in my life," said David Constantine, a Governor's Council member who'd done his best to derail the nomination, at the hearing where she was confirmed. "You're the best."

MARSHALL INHERITED A COURT WITH A STORIED TRADITION of independence and liberalism—and a court where it pays to be a political animal. First convened in 1693 to put an end to the madness of the Salem witch trials, the Massachusetts Supreme Judicial Court is the oldest continually running tribunal in the Western Hemisphere. The SJC's role was made official in a state constitution written by John Adams in 1780. A forerunner of the Bill of Rights in the U.S. Constitution, the Massachusetts Declaration of Rights established an independent judiciary, with life tenure and protection against salary cuts and the doctrine of separation of powers, along with the principle of equality on which Goodridge rests. As the historian Joseph J. Ellis has pointed out, Adams framed individual rights in "absolute and universal terms." Ellis believes this means that "at the very birth of the republic, in effect, an open-ended mandate for individual rights was inscribed into the DNA of the body politic, with implications that such rights would expand gradually over time."

In the 1880s and 1890s, the SJC was home to the titan Oliver Wendell Holmes Jr. Nearly a century later, the court helped launch a bold movement to locate broad new rights in state constitutions. In 1977, the liberal icon William Brennan wrote an influential Harvard Law Review article in which he urged state courts to expand criminal and civil rights beyond the parameters set by the U.S. Supreme Court. The Massachusetts justices heeded his call. In 1979, the court barred prosecutors from knocking out prospective jurors based on their race, a standard the U.S. Supreme Court didn't adopt until 1994. In 1980, the Massachusetts court abolished the death penalty for being arbitrary and discriminatory, four years after the Supreme Court had reinstated capital punishment. When the voters responded by passing a constitutional amendment to bring back capital punishment, the justices struck down the new death penalty statute too, on different, and fairly flimsy, grounds.

The justices who dissented from these decisions protested that the state's proud history of judicial independence was being twisted into an excuse for the majority to substitute its policy judgments for the legislature's. "This is the argument that John Adams made me do it," scoffed Charles Fried in a dissent. But for lawyers like John Reinstein, the legal director of the American Civil Liberties Union of Massachusetts, it was a glorious, if fleeting, moment. "You could go in and make the same arguments that you'd lost before the Supreme Court, and you'd win," he said.

In April 2001, seven gay couples hoped to tap into the court's independent streak. Represented by the gay rights advocates who brought the suit that led Vermont to adopt civil unions in 1999, the couples sued the Massachusetts Department of Health for denying them marriage licenses. The pairings in Goodridge v. Department of Public Health presented a picture of squeaky clean commitment: Hillary and Julie Goodridge, ages 44 and 43, 13 years together and mothers of a 5-year-old daughter; David Wilson and Robert Compton, ages 57 and 51, four years together and caretakers, until her death, for David's invalid mother.

Yet even devoted gay rights advocates figured victory to be a long shot. The court's bold historical moment notwithstanding, today six of the seven members of the SJC are Republican appointees, and only Marshall is a product of Bill Weld's mischievousness. Just ask personal injury attorneys, who rue the court's skeptical approach to plaintiffs' claims, or criminal defense lawyers, who have also been disappointed with Marshall's court. "They've reversed one first-degree murder conviction in the past 18 months," said Charles Rankin, who often argues before the court on behalf of defendants. "Under earlier courts, as many as 45 percent of those cases were being reversed."

The bench that heard Goodridge in March 2003 was relatively untested on civil rights issues, four of the justices having joined the court in the previous five years. The SJC had approved the joint adoption of a child by a lesbian couple 10 years earlier, but only Greaney remained from that era.

Still, Mary Bonauto, the Goodridges' lawyer, said flatly at oral argument that her clients would be satisfied only with marriage, rather than the civil union alternative that Vermont had adopted when faced with a similar lawsuit. Creating a different kind of union for gay couples "means branding gay people and our relationships as unworthy," Bonauto said. Marshall wanted to know whether Vermont's constitution had a guarantee of equal protection like the one John Adams wrote for Massachusetts. "There's no 'all people are born free and equal' in Vermont?" she asked Bonauto. "They chose not to follow us?" As the audience laughed, Greaney broke in. "Maybe they did better," he proposed. "No one could do better than the Massachusetts constitution," Marshall responded, to more laughter.

After oral argument, the justices moved to a small, book-lined room to discuss the case, as is their custom. For their discussions, they sit around a rectangular table in assigned seats. Four of the chairs have leather cushions; the others are bare to accommodate three justices' bad backs. Marshall didn't talk to me about the Goodridge deliberations. But court watchers credit her with cobbling together the four-justice majority that backed a state constitutional right to gay marriage.

It wasn't an easy task. Justice Roderick Ireland, a former juvenile court judge and the SJC's first African-American, is a solid liberal and a relatively muted presence on the court; his support for expanded civil rights isn't surprising. John Greaney's isn't either—he was Bonauto's clearest supporter at oral argument—but the bad feelings sparked when Marshall became chief justice reportedly still fester. In Goodridge, Greaney chose to write a separate concurrence in which he discarded Marshall's line of reasoning. The fourth vote for the majority was likely the hardest to win. It came from Judith Cowin, a former district attorney who is often a conservative voice on the court. Cowin's vote in Goodridge "blows my mind," said Paul Rozelle, a Marshall clerk in 2001 and 2002.

The SJC held on to the case for an unusually long time: eight months, almost twice the normal period. As spring turned to summer, the case for gay marriage got a boost from an unexpected quarter: Anthony Kennedy, the conservative-to-centrist justice of the U.S. Supreme Court. Kennedy was the author of Lawrence v. Texas, the court's decision last June that struck down state laws outlawing sodomy. Lawrence is about tolerating gay sex rather than giving gay people the full panoply of civil rights, and Kennedy took pains to stress that the decision wasn't a step toward gay marriage. But he also suggested—to the intense dismay of Antonin Scalia, the author of a sky-is-falling dissent—that states can't base laws on their moral opposition to homosexuality. The first line from another case that Marshall quoted in her opinion in Goodridge is this one from Lawrence (Kennedy had taken it from a 1992 abortion opinion that he co-authored): "Our obligation is to define the liberty of all, not to mandate our own moral code."

In other words, for Marshall this was Quock Walker, updated three centuries. But in crafting her opinion in Goodridge, Marshall had to make a leap from the guarantees of liberty and equality in the Massachusetts constitution to the conclusion that the state could not exclude same-sex couples from the institution of civil marriage. Normally, one way to make that leap would have been to conclude that gay couples were being discriminated against on the basis of sex. But not in Massachusetts. Back in 1976, when legislators passed a constitutional amendment to prevent sex-based discrimination, they promised that the protection would not extend to gay marriage. So Marshall needed to take another tack.

The one she chose was deceptively simple. Massachusetts could not reserve marriage for opposite-sex couples, Marshall wrote, because the state had no rational reason for doing so. In Goodridge, the best argument in defense of Massachusetts' marriage laws offered by lawyers for the state was that male-female unions provide the optimal setting for child rearing. In response, Marshall pointed out that the state had long allowed gay couples to adopt.

What she didn't point out were some less helpful facts, like the lack of evidence in the trial record or anywhere else about how children raised by same-sex parents fare. The few small studies that have been done are inconclusive. Normally, that dearth of data would be good enough reason to uphold the state's centuries-old marriage laws, since it's the plaintiffs' burden to prove that there is no plausible reason to uphold the status quo. In cases like Goodridge that challenge a state law as lacking a rational basis, courts are supposed to give states lots of leeway for justifying their practices.

Or are they? Some scholars argue that Lawrence (and a Supreme Court decision called Romer v. Evans, which struck down a Colorado constitutional amendment blocking local antidiscrimination statutes passed to protect gay people) created a new way to review state laws with implications for individual rights. When such laws are at issue, they argue, the question should not be whether the state has a rational basis for upholding the law, but whether the purpose of the law under review is a legitimate one. Courts have taken this approach in cases involving groups like the mentally retarded, who, like gay people, have been treated differently under the law because of prejudice.

Following this approach shifts some of the burden from the plaintiff to the state. Gay rights advocates argue that it's not legitimate to exclude gay couples from civil marriage in order to mark homosexuality as wrong, or offensive, or alien—especially when a basic right like marriage is at stake. And if that's the case, then it's the Commonwealth of Massachusetts that needs to put up evidence: evidence that gay households are suboptimal for children. And even if it had such studies in hand, the advocates argue, a state that allows gay couples to adopt would still have to explain why allowing them to marry wouldn't make things better rather than worse for their kids. "Once you've decided that marriage is a central life activity and that expressing prejudice against gay people isn't a legitimate message for the government to send, it's very hard to see how the government can restrict marriage to straight people," said Pamela Karlan, a Stanford law professor.

The logic may be nifty, but the three dissenters in Goodridge were not swayed: Martha Sosman, Robert Cordy, and Francis Spina wanted to keep the burden on the plaintiffs, which would have granted the state an easy victory. The state "is not required to present 'evidence' of anything," Cordy wrote. The dissenters also warned the majority against confusing constitutional analysis with policymaking—and thereby treading deep in the legislature's territory. "Through the political process, the people may decide when the benefits of extending civil marriage to same-sex couples have been shown to outweigh whatever risks—be they palpable or ephemeral—are involved," Sosman wrote in a separate dissent. "It is not up to us to decide what risks society must run, and it is inappropriate for us to arrogate that power to ourselves."

ADDING URGENCY TO THE DISSENTERS' FEARS was Goodridge's unspoken backdrop. Both the SJC and the statehouse were still smarting from a debilitating power struggle over a "Clean Elections" law passed by the voters as a ballot initiative in 1998. In her boldest decision before Goodridge, Marshall had jettisoned political expediency, especially the part of the chief justice's job that requires her to get along with the legislature.

The SJC's courthouse on Boston's Beacon Hill is only a few blocks from the statehouse. As Marshall puts it, there's a certain "conundrum built in" to the separation of power among the branches. Judges are supposed to reach independent conclusions, but the judiciary as a whole can be made to pay for those conclusions. "In Massachusetts, people don't get mad. They get even," said Herbert Wilkins, Marshall's predecessor as chief justice and a member of the court for 27 years. Marshall's Clean Elections ruling made people very mad.

Designed to make local races more competitive, the Clean Elections law offered public funding to candidates who agreed to strict spending limits and accepted no contributions larger than $100. Finneran hated the law. He called it "frivolous" and "a welfare program for aspiring politicians." For four years, the legislature refused to fund it. Then Warren Tolman, a Democratic gubernatorial candidate, sued for the money he was due under the law.

In a 5-2 decision written by Marshall in February 2002, the SJC told the legislature that it had two choices: Pay for Clean Elections or repeal it. Marshall positioned the court as the defender of the voters. "The Massachusetts Clean Elections law was approved overwhelmingly by the people," she trumpeted in the opinion's opening line. The legislature could not be permitted to override the people's wishes by stonewalling.

In some ways, however, it was the court's majority that was in danger of overstepping the limits of its power. "This court does not have the power to grant any of the relief suggested," wrote Judith Cowin in dissent. Her conclusion rested on "the separation of governmental powers, a foundational principle of our system with which we should be reluctant to tamper."

Marshall made an effort to head off a confrontation with the legislature by refraining from withdrawing funds for Tolman from the state treasury. "We are confident that the Legislature will act to meet its constitutional responsibilities," she said. But her confidence was misplaced. Accustomed to running for election unopposed, Massachusetts lawmakers, two-thirds of whom lacked opponents in 1996, were hardly grateful to the court for serving them up more competition. Nor did they appreciate being ordered around. The legislature refused to give Tolman his money—leaving the SJC with no clear way to enforce its order.

As the election neared and lawmakers wouldn't budge, Justice Martha Sosman, a Cellucci appointee who'd been assigned to manage the case, told Tolman that he could sell off state property to get his funds. After seizing a dozen cars from the state lottery commission, the Clean Elections camp got greedy and tried to go after Finneran's offlce furniture. "They started looking around to grab assets," Wilkins said. "That was a rather radical move in my judgment, and it became a disaster." At the high (or low) point of the drama, a Finneran henchman pre-emptively emptied the contents of his own offlce into a statehouse hallway, declaring that his foes could have his sofa but couldn't touch his spirit.

In the end, Marshall and her majority put themselves on the line for a cause that the voters would eventually abandon. In November 2002, Finneran and other Clean Elections opponents raised $550,000 to campaign against a second ballot initiative that starkly asked: "Do you support taxpayer money being used to fund campaigns for political offlce?" Primed by television ads showing dollar bills going up in flames, the electorate answered no. The legislature followed by unceremoniously repealing the Clean Elections law in an unrecorded voice vote.

But the damage between the branches had been done. Finneran mused darkly about the "cleansing" effect of requiring judges to stand for election. The legislature proposed cutting $60 million from the judiciary's annual $500 million budget. And in a slap to the judges personally, lawmakers threatened to strip them of their power to hire law clerks and secretaries. "The judges should not feel any brunt of an onslaught," Finneran told The Globe. No one believed him.

Clean Elections apparently fractured Marshall's relationship with Finneran. A week or two before the ruling came down, the two had a meeting, most likely to discuss the court's finances. Following the judicial code of conduct, Marshall said nothing about the impending decision. When her opinion came out, Finneran, who declined to comment for this article, was reportedly furious that Marshall hadn't given him the slightest heads up about it. "In his mind, Clean Elections was an earthquake of an opinion," one Boston lawyer said. "He was livid that there was no foreshadowing, no 'oh, by the way, Tommy, we're going to slit your throat in three days.' "

From a judge's perspective, Marshall's decision to keep quiet is irreproachable. But by the rules of Beacon Hill, it was an insult that underscored the distance between the worlds of the chief justice and the house speaker. And it was personal. "Both of them would deny that there's a rift, because they're trying to show a responsible public face," the lawyer said. "But I think the sound of her voice at this point is like fingernails on a chalkboard to him. I think he hates her."

THE CLEAN ELECTIONS FIASCO NOTWITHSTANDING, Marshall and her majority pulled the legislature back into the fray in Goodridge. After stating its strong support for same-sex marriage, the court gave the legislature 180 days to "take such action as it may deem appropriate in light of this opinion."

Parsing the meaning of that line quickly became a parlor game among interested lawyers and law professors. Was Marshall inviting the legislature to remake the decision as its own by introducing a civil union compromise? Or was she giving them 180 days to write same-sex couples into the state's marriage laws—in other words, to obey the court's directive as divined from the rest of her opinion?

Uncertain, the legislators and Republican governor Mitt Romney huddled with their legal advisers and then settled on the answer they preferred. A year earlier, a modest domestic partners bill had sputtered and died in the statehouse. Now Finneran and Romney embraced civil unions as a palatable alternative to gay marriage, which they both strongly opposed. The legislature quickly drafted a civil union bill that would afford gay couples all the "legal protections, benefits, rights and responsibilities associated with civil marriage." His fingers crossed, Senate president Robert Travaglini sent the proposed law to the justices for their blessing, under a quirk of Massachusetts law that allows the SJC to offer advice about the likely constitutionality of a pending bill. "It will be a sigh of relief to the people in this building" if the court approves the bill, he said.

But Marshall's majority wasn't open to a civil unions compromise after all. Writing again for the same four justices, Marshall's tone, careful and solicitous the previous November, grew impatient. She turned up the rhetoric of racial equality to drive her point home. She chided the legislature for "segregating" same-sex unions from opposite-sex ones. Marshall crowned her rhetorical flourish with an analogy to Jim Crow laws: "The history of our nation has demonstrated that separate is seldom, if ever, equal." The three dissenters countered that civil unions were untried. Since they offered an identical package of rights and benefits, who could say they would turn out to be second class? The majority was engaging "in a pitched battle over who gets to use the 'm' word," Martha Sosman wrote.

The fallout from the court's split was swift and fierce. "Beware of activist judges," Governor Romney wrote in The Wall Street Journal, calling on voters in Massachusetts and other states to amend their constitutions to ban gay marriage. As he had after the Clean Elections ruling, Finneran accused the justices of overstepping their bounds, calling the majority decision "libelous and defamatory," not to mention "intrusive" and "vituperative." "An awful lot of [statehouse] members feel as if, on one of the most important public policies that anybody could contemplate, that the people and their elected reps have been effectively sent to the sideline," he said.

Which raised the question of what the majority had gained by sending their initial decision back to the legislature. Why pretend that the lawmakers could respond as they "deemed appropriate" if there was only one right answer? As in the Clean Elections ruling, Marshall had been fastidious about respecting the formal boundaries of power between the branches. But in both cases, that approach may have exacerbated tensions rather than alleviated them. "First you hit them below the belt by making it harder for them to get elected, and then you throw a red-hot political potato into their laps," said one lawyer who watches the court. "No wonder they're pissed off. For someone as astute as Margie not to have foreseen that, it's hard to believe."

With polls in Massachusetts showing a slight majority of the public opposed to gay marriage, the legislature wrestled with whether and how to begin the process of amending the state constitution. Their first effort in February went nowhere. In March, the lawmakers approved an amendment offered jointly by Finneran and Travaglini, which would define marriage as the union between a man and a woman while establishing civil unions for same-sex couples. But even if the amendment wins passage this year, before it can become law it has to go before the legislators again next year, and then before the voters in November 2006. In the meantime, Romney and many legislators want the SJC to postpone issuing marriage licenses to gay couples. But Thomas Reilly, the Massachusetts attorney general, said he would not ask the court to stay its order on the state's behalf.

FOR MARSHALL, THE RIFT BETWEEN THE COURT AND THE LEGISLATURE opened up by the Clean Elections and Goodridge decisions is even worse than it appears. Since becoming chief justice, she has thrown herself into a long-needed reform of the Massachusetts court system. The work is not glamorous—all budget allocations and organization charts. But from an insider's perspective, solving the courts' problems matters because it would greatly improve the administration of justice in the state.

The courts' woes have two sources: The judiciary's longstanding habit of poor management and the legislature's of holding the purse strings of each courthouse. Massachusetts lawmakers, unlike those of any other state, approve individual microbudgets for local courthouses and programs. The courts operate with 156 separate and separately run budgets—each subject to legislative tinkering. Lawmakers can slip in extra money to reward the judges they like and cut funds to punish those they don't. Forced to sing for their individual suppers, judges have traditionally acceded to requests for patronage hires. Between 1998 and 2001 (when a ballooning deficit shut the tap), according to a report by a conservative research group, the courts were bloated with 111 new hires that no one had asked for at a cost of $50 million over four years. This, presumably, is not what John Adams had in mind when he imagined an independent judiciary for Massachusetts.

At the same time, the judges aren't known for running a lean operation. Last year, Marshall appointed a blue-ribbon commission to advise her about the courts' management problems. The group issued a 92-page report full of McKinsey-like recommendations. The judiciary needs a clear chain of authority to the chief justice, it said, and, when the judicial branch has proved itself ready, the power to manage its own funds.

Marshall believes change is imperative. "We are past the point—well past the point—of asking whether our courts should transform the way we deliver justice," she said in her latest annual address to the Massachusetts Bar Association. But Marshall doesn't have the power to whip the courts into shape. Real reform would require lawmakers, under Finneran's leadership, to give up their hold over the courts and the patronage opportunities that come with it.

Instead of showing an inclination toward reform, however, the legislature and the executive seem to have the controversial recent decisions on their minds and to be in a retaliatory mood. In a period of fiscal crisis for Massachusetts, Romney's proposed budget for 2005 takes a whack out of the funds for the Massachusetts trial courts. Judges aren't supposed to take the political consequences of decisions into account when deciding a case. Lawmakers aren't similarly constrained when they're deciding whose budget to cut.

THESE LOCAL REVERBERATIONS HAVE BEEN DROWNED OUT by Goodridge's national aftershocks. Marshall's February order led President Bush to support a federal constitutional amendment barring same-sex unions. It prompted Georgia, Indiana, Maryland, Michigan, and Oklahoma to consider amending their own constitutions. And it also inspired the mayors of New Paltz, N.Y., San Francisco, and Seattle to invite gay couples to line up on the steps of city hall, state law be damned.

Marshall has become a symbol of the uproar. "Hey hey, ho ho, Margaret Marshall has got to go," chanted gay marriage opponents outside the court's offlce in February. She has not, however, embraced the role of standard-bearer, as Supreme Court justices Brennan and Thurgood Marshall did during their court's march to the left. While Margaret Marshall is married to one of Brennan's champions—Lewis, the former Times columnist—it was her colleague John Greaney who followed in Brennan's proud-to-be-liberal footsteps in his separate concurrence in Goodridge. Greaney explained his support for gay marriage bluntly: "We should do so because it is the right thing to do."

Marshall has taken a more muted tack. It may seem obvious that judges don't read new rights into a constitution without the conviction that the animating issue is a moral imperative. But for a judge to be frank on that score is to lay bare the degree to which certain decisions, about fundamental and divisive social questions, come down to value judgments—especially for supreme courts, which are tasked with making law.

That is risky territory, institutionally and personally, and Marshall has taken care to avoid such frankness. In her intrepid decisions supporting the Clean Elections law and gay marriage, the chief justice may have abandoned the studied caution that was the hallmark of her career off the bench, yet Marshall is still Marshall. She continues to recognize the benefits of treading carefully. And she insists that Goodridge is a case about a constitution, not a cause: "This is not a matter of social policy but of constitutional interpretation," she wrote in February.

Were Marshall to claim for herself the mantle that Brennan urged on state judges 27 years ago in the Harvard Law Review, she might push the legislature over the brink. "She needs to get along with those guys. They've shown what they can do on the budgetary front if they're not happy," said Renee Landers, a law professor at Suffolk University who is a former president of the Boston Bar. "To the SJC's credit, the outcomes of the cases don't reflect any of that pressure. If that means, though, that Margie has to be a little modest and quiet about the legal developments that are happening, that's entirely appropriate."

But that doesn't mean her court was wise or prudent to expand gay rights exactly as it did at this time. Even leaders on the left warn that the Massachusetts ruling was dangerously premature. The decision "couldn't have come at a worse time," wrote Paul Starr, an editor of the liberal magazine The American Prospect, with an eye to the upcoming presidential election. Or a worse place: This summer, the Democratic convention will be held in John Kerry's Boston backyard.

It's important to remember, however, that Marshall and the SJC didn't ask to hear Goodridge. It was Hillary and Julie Goodridge, and Mary Bonauto, who chose to appear before the court now, rather than waiting 5 or 10 years. Marshall stresses that point. "It's really the litigants, represented by counsel, who develop and frame the arguments," she told me. "Lawyers teach judges."

But since judges must decide for themselves which lessons are worth learning, the surprise is that Marshall decided to heed this one. "I'd have predicted that she'd have tried to broker a compromise," said Harvey Silverglate, the lawyer who tangled with Marshall at Harvard. "Maybe we're seeing her recognize that sometimes you actually get further by taking a stand on principle, that you can engender more respect that way than by being the consummate politician."

Has Marshall recalibrated her balance of politics and principle? Perhaps, but what has really changed since she was a lawyer rising through the ranks of the Boston Bar and then advocating for the interests of Harvard is that she now enjoys the independence that comes with being on the SJC. Her responsibilities aren't to herself or to a client; they're to a court, a constitution, and a people. Independence, John Adams avowed, is the foundation of a functioning judiciary. Without it, judges forfeit their authority and become agents of those with power. In the South Africa of Marshall's youth, the courts were not independent—and the result was that they abetted the apartheid system that Marshall fought to dislodge.

"So often people take for granted the system of government that generation upon generations of Americans have built," Marshall told me. "Even Americans who are deeply devoted to the law take judicial independence for granted. This is the piece of me that's different from you: I never take that for granted." Whatever else Marshall's decision in Goodridge was—rash, misguided, enlightened, courageous—it was independent. It's too soon to say whether the independence she exercised in calling for gay marriage will harm the institution she loves, or whether Marshall has found her own Quock Walker.

Emily Bazelon is a senior editor at Legal Affairs.

printer friendly email this article letter to the editor reprint premissions
space space space space
Contact Us