The Liberator Among Us

Ten years after the decision she wrote changed America forever, Chief Justice Margaret H. Marshall reflects on democracy, marriage, and her intimate relationship with the Vineyard.

When Margaret H. Marshall became chief justice of the Massachusetts Supreme Judicial Court in 1999, one congratulatory call came from an old friend from Martha’s Vineyard. Marshall and her husband, the two-time Pulitzer Prize–winning New York Times columnist Anthony Lewis, were Vineyard regulars who had come to the Island both in season and out since the 1970s to seek refuge from their respective gigantic careers. It was here, in stolen weeks off deadlines and demands, that they struck a lasting friendship with the novelist Ward Just and his wife, Sarah. On the new chief justice’s answering machine, Just kept his message to three words: “Ain’t America great?”

Just was talking, no doubt, about the fact that merely by rising from associate justice to chief justice of the Supreme Judicial Court, Marshall was breaking barriers. An immigrant from South Africa, she was the first woman to lead the commonwealth’s highest court, which is the oldest continuously operating appellate court in the western hemisphere. What neither the novelist nor the new chief justice knew at the time, however, was that only a few years into her tenure a case would come her way that would ignite the greatest advance in American civil liberties in a generation.

By Marshall’s own estimate, she wrote about three hundred opinions during her fourteen years on the Supreme Judicial Court, many of them drafted, at least in part, on the Vineyard. But her legacy will certainly turn on the four-to-three majority opinion she wrote in Goodridge v. Department of Public Health, which made it unconstitutional to deny same-sex couples the rights and privileges associated with marriage. It was 2003 and not a single state allowed gay couples to marry.

Attorney Mary Bonauto, who argued the case before the court, on May 17, 2004, the day same-sex marriage became legal.

While same-sex marriage may seem inevitable through today’s lens, Goodridge sparked a political and cultural war that glowed red hot for several years. Congress had already passed, and President Bill Clinton had signed, the Defense of Marriage Act (DOMA) prohibiting the federal government from bestowing the more than one thousand protections and benefits that flow from marriage to same-sex couples. Even Massachusetts, despite its “blue state” reputation, did not provide simple health insurance benefits for gay and lesbian partners.

Former Massachusetts Attorney General James M. Shannon did not hesitate to describe the decision this way: “Margaret Marshall looked history in the eye and she didn’t blink.”

A decade after the Goodridge decision went into effect, nineteen states and the District of Columbia allow gay marriages, and there is active litigation pending in every state without marriage equality. Most court observers expect the U.S. Supreme Court to face the question once and for all either next year or no later than 2016. It is a revolution, indeed. One that, once again, started in Massachusetts, this time in the court presided over by Chief Justice Marshall.

Marshall prefers to say little about the pressures before the decision, or the backlash it engendered. But according to her successor as chief justice, Roderick Ireland, who also joined the opinion as an associate justice, the justices took extraordinary steps to keep their deliberations secret. Even court officers were not privy to discussions, and Goodridge was not listed on any internal scheduling document, to avoid inciting protests.

Meanwhile, some advocates of marriage equality worried about the consequences of potentially losing a marriage suit. “There was enormous frustration that anything gay was untouchable. How could we think about litigating marriage?” recalls Mary Bonauto, the civil rights director of Gay & Lesbian Advocates & Defenders (GLAD), who brought and argued the case before Marshall’s court. “With the exception of a few individuals, it was considered absolutely toxic. People felt the issue was a loser and a distraction, and why spend valuable political capital on it?”

May 17, 2004. Happy first couples emerging from Cambridge City Hall after applying for marriage licenses.
Marilyn Humphries

One who was on board from the beginning was Laurence Tribe, the renowned professor of constitutional law at Harvard Law School. He filed an amicus brief in support of Goodridge on behalf of one hundred fellow law professors and deans, but says also that “many who now agree [that Goodridge] made all the difference conveniently forget their cowardice at the time, when they worried aloud about the likely backlash.”

Fears of a backlash were not unfounded. After the first Massachusetts weddings were performed in 2004, eleven other states passed same-sex marriage bans, and Congress attempted a federal constitutional amendment to ban it. On Beacon Hill, there were legislative bills to impeach Marshall and the other three justices who formed the majority opinion. There were court injunctions and stay requests filed to stop the marriages. All failed, and as the day drew near, the governor at the time, Mitt Romney, vowed to block out-of-state residents from coming to the commonwealth, saying, “Massachusetts should not become the Las Vegas of same-sex marriage.”

At demonstrations over the next few years outside the Massachusetts State House, opponents latched onto the chant: “Hey, hey, ho, ho, Margaret Marshall has to go!”

The Goodridge decision inflamed three consecutive joint legislative sessions, where opponents of marriage equality tried to put the question on a referendum ballot but ultimately failed. To Marshall, who has deep reverence for the rule of law in her adopted country, all of it – from the cries of judicial activism to inciting the wrath of the nation’s president and much of Congress – firmly demonstrates the strength of our democracy.

These days, when she travels abroad speaking about the law and our court system, she says there is always one question she gets every time. “How do you get people to obey your orders?” she says people ask. “And to those of us who are fortunate enough to be in a country that fundamentally respects the rule of law, that question never arises.” Even Governor Romney, she points out, reminded citizens that the court had ruled and that marriage equality was the law of the land, like it or not.

March 11, 2004. Supporters and opponents of marriage equality demonstrated side-by-side at the State House.
Marilyn Humphries

“Because of her life experiences in South Africa,” says Martha Minow, dean of the Harvard Law School, “she reminds us never to take for granted an independent judiciary, national commitment to the rule of law, and ongoing efforts to make access to justice a reality rather than a nostrum.”

Marshall, who answers all questions in measured terms and with a certain formality, demurs when asked how the vitriol that followed the decision impacted her personally. Some of that proper decorum may emanate from her roots in South Africa, where she fought apartheid as a student leader before coming to the States to escape government repercussions. It also reflects her rise through the legal community, serving at one time as president of the Boston Bar Association and general counsel at Harvard University. And it certainly suits her position today as senior counsel at Choate, Hall & Stewart, one of Boston’s premier law firms.

She does, however, acknowledge there was a backlash. And security precautions. And even some longtime friends who were furious and told her, “This is going too far.”

“It was a tremendously courageous decision,” says another of Marshall’s friends from the Vineyard, the attorney Ron Rappaport. “It took another four to five years for another court to catch up, and it had to be lonely for a long time.”

It’s singularly appropriate, perhaps, that one of Marshall’s greatest reservoirs was her own marriage. She and Tony Lewis discovered the Vineyard independently before making it their shared refuge after they met in 1973 and married in 1984. Marshall remembers being introduced to the Island in either 1969 or 1970 when, she says, “I was a brand new immigrant.”

 “You could go anywhere then,” she remembers. “There were no gated communities and there were fishermen
everywhere and it was a wonderful community.” As a working student she found it easier and cheaper to visit in the off-season, and so began long winter weekends and ten-day stretches in a winterized Gay Head house where she first saw snow on the beach. That didn’t happen in South Africa. “So my love for the Vineyard has really remained off-season.”

Yet Lewis was a summer creature, too, scavenging for driftwood, tending his vegetable garden, and warring with rabbits and deer. Their West Tisbury home in those early years was a place lovingly and fittingly called “The Camp.” There was no electricity. “The refrigerator was run by kerosene,” Ward Just recalls. “It was Tony’s ‘back to the earth’ movement.”

Many from that time remember waiting in line for the public phone at Alley’s. And waiting. And waiting...while Lewis phoned in his twice-weekly column to the New York Times.

The chief justice shares a hug with a parishioner at Union Chapel in Oak Bluffs after delivering a sermon honoring Nelson Mandela in July 2013.
Jeanna Shepard

At some point, particularly for Marshall who would arrive for summer weekends with a workload in tow, it just became too much. “In those days, you actually needed electricity to get a phone. And that made it very difficult. That doesn’t exactly work for a lawyer. And at some point we decided to build another house down the same road, but this time with a lot of electricity.”

And heat. The couple would return often in the off-season. “And we would indulge and rent videos from the wonderful Island [Entertainment] video store and the wonderful Annie because she knew what my husband liked. My husband liked no violence and happy endings. So whenever, and even now, if I go in, Annie knows.”

They were two highly successful, driven people. “I think it was a miracle those two found each other,” says Just. “They really were aligned in a lot of ways. They existed, I think, as two very strong personalities, which can result in real trouble, but it was quite the reverse for them. They simply complemented each other, and then you throw in a love affair and that’s formidable.”

“This was truly a love affair,” echoes Rappaport. “They loved each other, so they loved coming here where they could get away from the stress of their real world life and just spend time alone and in the company of close friends. For them, it was a time to be alone and a refuge.”

To Marshall, the Vineyard over those many years “was a place of solitude and happiness and time to spend together. And I think we were the happiest when we could spend twenty-four hours together, even if we were both working. So, it’s a beloved place for me, off-season and on-season.”

When Lewis was diagnosed with Parkinson’s disease, Marshall remained on the court for a while, but stepped down in 2010, well ahead of the mandatory retirement age for justices in Massachusetts. As she said at the announcement, “Tony and I are both at an age when we have learned to value, value deeply, the precious gift of time. And so, with deep regret, but also with deep conviction, I will relinquish my role as chief justice in order that, without distraction, Tony and I may enjoy our final seasons together.”

After Lewis died in March 2013, Kevin Cullen wrote of him in the Boston Globe: “His greatness was measured by how much he loved his wife and, in return, how much she loved him back.”

For Marshall, who returned to the Vineyard over Memorial Day weekend this past May, their much-loved home and Island is difficult right now. “It remains a special place, but it’s very hard for me to go back, but I do go back. I have wonderful friends on the Vineyard. But it’s very hard, especially in the off-season, because that was our time and our place.”

Ten Mays previously, on May 17, 2004, the opinion Marshall wrote went into effect, giving everyone in Massachusetts the right to marry whomever their hearts told them was their own great love. The day arrived with an abundance of sunshine and reporters and film crews from around the country and the world. Cambridge became the first city to issue licenses at 12:01 that morning, and several hours later then-Boston Mayor Thomas Menino greeted thousands of people on City Hall Plaza and personally escorted the three Boston plaintiff couples inside to collect their marriage licenses.

“She’s a giant,” says attorney Bonauto of Marshall, “and she will always be remembered because Goodridge broke an historic barrier with its themes of equality and dignity.”

To Roberta Kaplan, the lawyer who successfully challenged the Defense of Marriage Act in another landmark ruling, this one by the U.S. Supreme Court last year, Goodridge laid the marriage stepping stones: “All citizens of this country – both straight and gay – owe an enormous debt of gratitude to Margaret Marshall for…recognizing what seems so obvious today – that gay Americans, like all Americans, are equally entitled to the full range of human experience and full protection of the laws.”

A decade after she and her fellow justices changed America,  and one year after the loss of her own beloved spouse, Marshall accepts the outsized role Goodridge has had on her tenure on the court and her legacy. But characteristically, she puts it humbly.

“I am pleased that [to] the extent I have a reputation that focuses on one case, it’s a case that involves human dignity. Not every judge has that opportunity. And in some ways, I feel how fortunate I was, in retrospect, that I happened to be on the Supreme Judicial Court when that case was brought.”

She also happened to author a legal opinion that contains what is now a popular alternative reading at weddings, both gay and straight:

“Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.” 

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