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Scot Lehigh

Marshall’s sense of fairness

(Suzanne Kreiter/
Globe Staff)
By Scot Lehigh
Globe Columnist / July 23, 2010

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CHIEF JUSTICE Margaret Marshall, who wrote the decision that made us confront the issue of marriage equality, stunned the state this week by saying she would hang up her robes in the fall. Her announcement was a poignant moment, for it comes because her husband, former New York Times columnist Anthony Lewis, is suffering from Parkinson’s disease.

Justice Robert Cordy, usually the very personification of equanimity, pronounced himself in a state of shock at the news. “Trying to assess how we will go on without her leadership . . . is really difficult for me to process right now,’’ he said immediately after her press conference. “She is an amazing jurist, she is an amazing leader.’’

Her intelligence was clear from the start. It won her a Supreme Judicial Court appointment from Bill Weld and elevation to chief justice from Paul Cellucci. “I remember when Bill Weld and I interviewed her to be an associate justice,’’ said Cellucci. “We were both blown away by her intellect and her life experience. It was an easy decision to put her on the bench and for me to nominate her to be the chief justice.’’

As chief justice, Marshall operated with real skill in the Brueghelian landscape of Massachusetts politics, where the Legislature has long thought the proper function of the state court system is to serve as a patronage colony.

One can’t, of course, assess Marshall’s legacy without contemplating the SJC’s landmark 2003 decision legalizing same-sex marriage. That decision, which Marshall engineered and authored, drew praise for its courage and commitment to equality. But it also brought harsh accusations that the chief justice and her allies were legislating from the bench. Meanwhile, one could certainly argue, as the dissenting justices did, that such a matter was better left to the Legislature.

And yet, Weld offers a cogent rejoinder to the assertion that Marshall pushed the court beyond its proper role. “Some on the right have attacked her for being a judicial activist,’’ he said. “To which my reply is that if you are applying the equal protection safeguards of the Massachusetts constitution, that is not judicial activism.’’

Here, the SJC decision resulted in an extended political struggle over proposed constitutional amendments to prohibit gay marriage. Although a majority of citizens initially opposed the SJC decision, the push to overturn it gradually lost steam. In June 2007, that effort effectively ended when an anti-gay-marriage amendment was defeated in the Legislature, in honorable accordance with the state constitution. Since then, state residents largely seem to have made their peace with same sex marriage.

But the results were different elsewhere. In reaction to the decision, numerous anti-gay-marriage constitutional amendments were passed in other states. Indeed, such a ballot question gave the GOP a tool to turn out conservative voters in closely contested Ohio in 2004; George W. Bush’s victory in that state ended John Kerry’s hopes of eking out an Electoral College victory.

Although lawmakers or courts in four other states and the District of Columbia have now established the right of gay marriage, when citizens have voted directly, they have rejected the idea.

And yet, a justice’s job is not to mull the possible political consequences of a decision, but rather to rule on the merits of the matter.

“The issue of gay marriage is one of the great moral and legal issues of our time,’’ notes Harvey Silverglate, the attorney and author. “There is very little doubt in my mind that the court was on the right side of history.’’

In my view, that’s right. Further, the public is gradually becoming more accepting of same sex marriage. Younger voters in particular are supportive. That’s why, in contrast to the mixed results we’ve seen since 2003, the next decade seems likely to be a time of steady progress toward marriage equality.

If so, that will be because Margaret Marshall and the court she led faced the issue fearlessly. And because, despite its initial doubts, this state came to share her sense of fairness.

Scot Lehigh can be reached at lehigh@globe.com.

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