Margaret Marshall and the judicial decision that changed the nation
Second of a four-part series on the 20th anniversary of marriage equality
Afew years after the 2003 case that made massachusetts the first state in the nation to legalize same-sex marriage, margaret marshall, the state Supreme Judicial court chief justice who wrote the majority opinion, received a program from a wedding attended by friends in Virginia.
when she read it, marshall said, she was “completely taken aback.” In the program were the names of those whose words the couple had chosen for their ceremony — william Shakespeare, English poet John Donne, and margaret marshall.
Even though the couple was straight and marriage equality was years from being legal in Virginia, they included a portion of marshall’s decision that, six months after it was announced, allowed same-sex marriages to begin on may 17, 2004.
“You don’t write decisions and think they’re going to be quoted anywhere,” marshall said. “A newspaper reporting it might write a sentence or two, but not much more than that.”
During a recent interview with marshall, I mentioned that I’ve attended several weddings of lesbian or gay friends who included an excerpt from the goodridge v. Department of Public health opinion. In nearly every case, this was the chosen passage:
“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 fulfils 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.”
beyond a legal landmark, marshall’s majority opinion remains a praise song to equality. but she joked that it took her “too long” to write the 61-page decision. robert compton, who with his husband, David wilson, was one of the seven same-sex couples who sued the commonwealth for the right to marry, said that marshall “wrote it so beautifully, she could have taken a couple of more months. It was worth the wait for that document.”
that document changed this nation by finally giving lgbtQ people one of the most basic human rights — to marry the person they love. It would be more than a decade until marriage equality became federal law with the Supreme court’s obergefell v. hodges decision in 2015. but marriage equality’s inaugural step was immortalized with marshall’s words, which are worthy of being recited alongside Shakespeare and Donne, though she would heartily disagree.
“I certainly didn’t expect it to become such a groundbreaking decision,” marshall said. “I’ve just come to accept it.”
Just as this nation has come to accept marriage equality. In a 2023 gallup poll, 71 percent of Americans support same-sex marriage. According to a Pew research center poll, only 33 percent backed marriage equality in 2013. that percentage increased as more states embraced marriage equality after massachusetts.
but for all the exuberance that stretched from boston to the berkshires on what became a statewide celebration of marriage, the road to those churches and city and town halls where the first same-sex weddings occurred was long and hard-fought, a fact that marshall believes isn’t as appreciated as it should be 20 years later.
“I think even today there’s not an understanding and a recognition that goodridge, the case itself, did not just pop up out of the blue,” she said. “I’m often asked if I’m surprised how quickly the right to same-sex marriage spread across the United States and my response always is it wasn’t quick. It started 50 years, now 70 years ago.”
when the time came for the SJc to consider the same-sex marriage case, marshall’s deliberations were guided by the state constitution, especially its opening words.
“I’m just trying to get the law right,” she said about her majority opinion. “I’m trying to articulate why it is that I think under the constitution of the commonwealth of massachusetts, which starts with the words
‘All men are born free and equal,’ this was the right decision.”
not everyone agreed. marshall was accustomed to having her decisions questioned by the media or legislators. but the vitriol and hate that came after the goodridge case was unlike anything she’d ever encountered.
“People were very confrontational. Every now and then, a friend of mine would call and say, ‘I’m just looking outside my office window’ — in one of those high-rise law firms — ‘and there’s a banner from an airplane, “Impeach Justice marshall,” ’ and words worse than that,” she said. “It was the scope and the intensity of it.”
when President george w. bush criticized “activist judges” in his 2004 State of the Union address for “redefining marriage,” marshall thought, “‘that’s me.’ I had the experience of the vehemence of the government of South Africa against
nd me” — in her youth, she participated in her homeland’s anti-apartheid movement — “but I had never experienced this in the United States.”
but marshall relished leading a court with a history of culturally impactful decisions. long before she left South Africa to attend harvard, there were two American judicial rulings that were especially “meaningful” to her. one was brown v. board of Education, the 1954 Supreme court case that ruled that school segregation was unconstitutional. (It was “100 percent coincidental” that may 17, 2004, was also the 50th anniversary of that critical decision, marshall said.)
the other case involved several enslaved black people in massachusetts who sued for their freedom in the early 1780s. they won because the SJc determined that slavery was inconsistent with its still-nascent state constitution that stated “All men are born free and equal.” that decision led to this state becoming the first to abolish slavery.
marshall applied a similar standard in her goodridge opinion, writing that barring same-sex couples from marriage was “incompatible with the constitutional principles of respect for individual autonomy and equality under law.“
“I believe judges want to look at and focus on the law, but it has to be hard in those times when you’re being asked to do something no one has done before,” said mary bonauto, the glbtQ legal Advocates and Defenders senior director for civil rights and legal strategies who represented the goodridge plaintiffs. “that says so much about them.”
when the Supreme court overturned roe v. wade nearly two years ago, a different justice in a different court made a statement that said so much about him. In a concurring opinion, Justice clarence thomas suggested that the nation’s highest court should reconsider all of the court’s “substantive due process precedents” — including obergefell v. hodges.
“I’m worried when it becomes more difficult to vote, which is the foundation of our democracy. I’m worried when barriers are set up for anything. I would hope there’s no step back,” said marshall, who retired from the SJc in 2010. “but I cannot dismiss a sentence from a justice’s decision in the US Supreme court. one of the disciplines I hope judges adhere to is that you decide the question that is presented. You don’t get to imagine or suggest all these other kinds of hypotheticals.”
After her goodridge opinion, marshall saw politicians, activists, and demagogues try to upend the court’s ruling and the state constitution. only with the failure of a final attempt in 2007 to push for a constitutional amendment vote would same-sex marriage here be secure. She credited the “leadership” of then-massachusetts governor Deval Patrick, the “courageous” people in the state legislature, and the “extensive lobbying that was done by supporters of same-sex marriage” to protect the SJc’s decision.
“I see marriage equality as part of the great United States experiment of inclusivity and equality for everyone,” marshall said. “we have always moved forward, then sometimes move back, then move forward, then sometimes move back. Each time I hope we don’t take steps back. but I never take it for granted.”