Calm justice in eye of gay marriage storm

In Massachusetts and around the world, there is passionate interest in the ruling by the Commonwealth's highest court declaring that same-sex couples have the legal right to marry.

As a result, the president declared war on "activist judges" -- overlooking the fact that this one owes her job to a Republican governor. Last week, a deeply divided Massachusetts Legislature met to consider an amendment to allow a ban of gay marriages to come before voters. After two emotionally draining days, the senators and representatives adjourned in exhaustion and gridlock; they are scheduled to reconvene on March 11.

There is no hint of any of that in Marshall's office, which overlooks King's Chapel and Burying Ground, a historic Boston site that dates back to 1688. On her wall hangs a copy of the first page of the state Constitution, the oldest written constitution in the world. There is no TV; Marshall says she is not watching the wrenching debate. "Nope. I'm onto my next case," says the animated yet dignified woman in classic pearls.

The chief justice cannot talk about the opinion behind the controversy but observes: "Nobody's got a lock on the truth. I happen to think the United States system of government, the three coequal branches, is one of the great successes of the world. That doesn't mean it couldn't be improved. . . . I welcome scrutiny of the judicial branch. Openness in all branches of government is just that. Scrutiny of the judiciary is entirely appropriate."

House Speaker Thomas M. Finneran began recent debate on Beacon Hill with a bitter broadside against the SJC's justices. He accused them of libel and defamation, saying they had accused opponents of gay marriage of "animus and bigotry." He also derided the justices as "unelected, unapproachable, unreachable." Marshall would not respond specifically to any of the criticism, saying only: "I have enormous respect for the legislators. I have great respect for the governor."

The key to understanding the SJC decision lies partly in Marshall's personal history. Both revolve around the concept of unalienable civil rights and a reverence for the history of American jurisprudence. On Feb. 11, the day Finneran directed his rhetorical fire toward the SJC, Marshall gave a speech to the New England Conservatory of Music entitled, "A `Mighty Invention': John Adams and Constitutional Democracy in the 21st Century." In the speech, Marshall talked about growing up in South Africa during the apartheid years and becoming a student leader of antiapartheid activities in the 1960s. She talked about the fear of "a knock on the door in the middle of the night" and the reality of knowing that "no court would protect me." She arrived in the United States in 1968 with "an immigrant's consciousness of the value of an independent judiciary."

"How familiar that model is to us in the United States . . . now," said Marshall in the speech. "The idea that judges in our system of government have to the power to say no to legislators and governors -- and presidents from time to time -- is the great ideal embodied in the Constitution of Massachusetts. It is an ideal that was adopted, almost word for word, by the framers of the United States Constitution."

In her office, Marshall discusses Adams's "mighty invention," a phrase coined by Benjamin Kaplan, a former justice of the Massachusetts SJC. The conversation is logical, devoid of the overlay of emotion of the people on Beacon Hill. "This is a remarkable institution," says Marshall. "Does it create tension? Of course. . . . Over time we learn the meaning of the words we learned in third grade, `checks and balances.' They have worked remarkably well over time."

Justice, she adds, "is a little bit like oxygen." When it's all around you, you don't really notice. When you cut it off, you do.

In this matter, the court extended the oxygen supply. The people down the street should think twice before cutting it back.

Joan Vennochi's e-mail address is vennochi@globe.com.