Author of 2003 gay marriage decision reflects on Supreme Court ruling
On Nov. 18, 2003, Margaret H. Marshall, then the chief justice of the Massachusetts Supreme Judicial Court, delivered Goodridge v. Department of Public Health, the landmark decision allowing gay marriage in Massachusetts — a decision that paved the way for Friday’s US Supreme Court ruling extending same-sex marriage rights across the country.
Sitting in the common room of her Cambridge apartment complex overlooking the Charles River, the retired chief justice reflected on the weight of her decision and its influence on the historic US Supreme Court case.
Recalling the first words of the Massachusetts Declaration of Rights, “All people are born free and equal,” Marshall said the Goodridge decision in 2003 “gave meaning to those words.” Now, just 12 years later, the Supreme Court decision is a powerful testament to the democratic process, she said.
“You see it working its way through, as we have done for 200-plus years,” she told the Globe. “For me, it’s exhilarating.”
This interview has been edited and condensed.
Q. What were you doing when you heard about the Supreme Court decision, and what was your reaction?
A. I was waiting and watching my computer to see whether the United States Supreme Court would issue its decision today, and my reaction was, of course I was both pleased, but not so much for the personal reason but really because, for me, watching the United States constitutional system at work is always [fulfilling] for me, and because of the role Goodridge played in this I’d be able to watch it going forward, from the beginning.
Q. Justice Kennedy’s opinion quotes your opinion in the Goodridge decision. Do you see any similarities between the two decisions?
A. With Justice Kennedy, the structure of his opinion is similar. The reasoning is similar. . . . He starts with a lengthy discussion of the couples who brought the cases in Ohio and Kentucky and Tennessee and Michigan, about who they were and what their lives had been like. He really tried to personalize them.
That’s what I did in Goodridge, and many people commented on that to me, saying it really takes it out of being a sort of cold, impersonal way of considering the question, but it’s deeply personal. And I think that has something to do with what’s at issue here. What’s at issue here is not only a fundamental right but something that, just as Justice Kennedy says, [is] central to human beings.
Q. At what point do the courts decide that a public matter is ripe for its intervention?
A. The full participation of minorities in our democracy often has a constitutional base, and the reason is very simple, because the Legislature, the rule is majority rule, which isn’t to say the Legislature never takes into account minority populations, of course it does. But that’s the guarantee that we have in our amazing society, that people who are disadvantaged, or despised, have certain guaranteed rights, and when they make those claims the court can address it. How you decide in each case is difficult to say.
But it’s not a matter of letting the thing run its course through the Legislature, and then you go to court. In the interracial marriage cases for example, at the time, in 1948 . . . at that time, I think less than 10 percent of the American people were in favor of interracial marriage, so if we left it up to the Legislature. [pause] Right? I mean, you can’t keep leaving it up to the Legislature.
Q. You mentioned the climate against interracial marriage in the 1950s. What was the environment of same-sex marriage at the time of the Goodridge decision, and how does that relate to the Supreme Court’s decision today?
A. I had no idea what the climate was like at the time we wrote the decision. I think that there was public interest; we, of course, we knew because of the media interest. But why the media insisted in some cases, and not others, even that I had no idea it would have this rolling effect across the country, or for that matter across the world. It simply wasn’t part of my consideration, or, I think, of my colleagues’.
Q. Well, 12 years later, do you have a sense of profoundness, or pride, in having your opinion quoted by Justice Kennedy?
A. I’m asked that question so often, and I have to say that what I feel so deeply is [pride] watching our constitutional democracy work. It’s not because I wrote the decision, or he quotes my words. It’s a reaffirmation of what I think of as the great human march towards human equality.
Some of that, of course, is because I grew up in South Africa, although that wasn’t at all, had no influence on how I decided Goodridge, but you look at racial equality or gender equality, or this sort of full recognition for people with disabilities, and then again, lesbian peoples, there’s something deeply meaningful to me. And so when the United State Supreme Court affirms it to me, in that sense I feel more proud as an American citizen than I do as the author of Goodridge.
This is a great democracy. I came here as an immigrant. I love this country, and that is more meaningful to me than anything else. I would have been disappointed if the court had reached a contrary result.