Marriage Equality at 10

Photo by Rose Lincoln/Harvard Staff Photographer
Harvard Gazette
November 13, 2013
By Christina Pazzanese

On Nov. 18, 2003, the Massachusetts Supreme Judicial Court published its landmark 4-3 decision in Goodridge v. Department of Public Health, which declared that the state constitution did not legally exclude gays and lesbians from marrying. The ruling made Massachusetts the first state in the nation to legalize gay marriage.

Much has changed since then. Just 10 years later, 15 states now permit same-sex couples to marry, with Illinois recently passing legislation that could soon legalize it as well. In June, the U.S. Supreme Court ruled that a section of the Defense of Marriage Act (DOMA), the federal law defining marriage as a union between a man and a woman, was unconstitutional. The court also declined to hear a challenge to a federal court ruling in California that had overturned Proposition 8, a voter referendum, effectively paving the way for same-sex marriage in the most populous state.

Margaret H. Marshall, Ed.M. ’69, the now-retired chief justice who authored the majority opinion in Goodridge, is a senior research fellow and lecturer on law at Harvard Law School. Marshall spoke with the Gazette about the precedent-setting ruling and the rapid cultural and legal shifts that have taken place in its wake.

GAZETTE: Take me through that day: What happened in those first few hours?

MARSHALL: I frankly did not anticipate the national and international reaction to the decision. Of course, I knew that the litigants and public were waiting for the decision to be released. The Goodridge decision, as all Supreme Judicial Court decisions, was released at 10 in the morning. It was only later that afternoon when I was driving back from a judicial conference and happened to turn on National Public Radio that I realized that Goodridge would be different. I did not expect NPR to cover the story, but it was all over the news. That was the first inkling I had that Goodridge would receive such wide press coverage. In retrospect, people have suggested that I was naïve not to anticipate the media explosion. But a justice of a state court is very different from a justice of the U.S. Supreme Court. There have been many court decisions in Massachusetts that receive press coverage here. Very seldom do those rulings make national news. The media response to Goodridge really did catch me unawares. Representatives of media do not telephone justices for comment. We had an excellent public information officer, Joan Kenney: Her phone was ringing off the hook. But mine was not. Even legal friends and colleagues are inhibited, appropriately, about telephoning a justice to discuss a particular decision. So I went about my daily life. I went back to my office and started working on the next case or dealing with a budget issue, or whatever it was I was doing on that day.

GAZETTE: Were you worried the decision might be overturned on appeal or that the Legislature would amend the state constitution to render the decision null?

MARSHALL: No. We are fortunate in the United States that people — in government and out of government — obey court orders. In Goodridge, we included a provision delaying the implementation of access to same-gender marriage [for six months]. The court wanted the appropriate authorities to have an opportunity to prepare the appropriate forms and so on. That is not unusual. It allows the appropriate city and town officials to read the decision, absorb the decision, and act accordingly. You didn’t want to have people running into the clerk’s office and saying “Please give me a license” when the clerks hadn’t even been informed of the decision.

GAZETTE: How were you treated in the days and weeks after the decision was out? Did you receive any letters or threats?

MARSHALL: Yes. I don’t speak about the negative reaction. It was not an easy time. The court received hundreds of letters. The public doesn’t necessarily know that they couldn’t write to ask me to change the decision. It was a challenging time, it was a challenging time. The New York Times reported Goodridge on its front page. The following day the front page of The New York Times had a picture of the chief justice of California swearing in Arnold Schwarzenegger as the governor. From my point of view, my opinion was a one-day story. It was same-sex marriage one day and the swearing in of Gov. Schwarzenegger the next day. Well, that turned out to be not quite accurate. And the hostility to me personally continued for a long, long time.

GAZETTE: What kinds of debate went on behind the scenes?

MARSHALL: You know I can’t talk about that. I think there is an important reason why the discussions among justices are confidential. To the extent that anything is ever written about Goodridge, I hope it will be after the last justice who ruled on the case is deceased. I have left all of my papers to the Radcliffe Institute, and the Goodridge papers will not be opened until after the last justice is deceased. One thing I can say is that the Supreme Judicial Court it is a remarkably collaborative and collegial court. The justices always worked hard to make sure that people who read the opinions understood the legal dispute. In the majority opinions and the dissenting opinions in Goodridge, there are noad hominem attacks by one justice on another. All of the opinions are devoid of any suggestion that a justice reaching a different conclusion is advancing arguments another justice did not respect. Same-sex marriage was an issue that divided our court, and divided every state Supreme Court until the issue reached Iowa, which issued a unanimous decision affirming same-sex marriage. New York and New Jersey, I think, were the next two cases. Both courts issued split opinions. And of course, in the U.S. Supreme Court in [United States v. Windsor] and a related California case, the Perry case, the court was divided. I feel most proud because the differing opinions in Goodridge are devoid of any suggestion that an opposing justice has misread the constitution or has done anything other than express a legal view about a difficult legal issue.

GAZETTE: Unlike these other state and federal decisions?

MARSHALL: I hesitate to point fingers, but I think if you look at the decisions from other states and even the Supreme Court on this issue, the justices seem to be far more critical, accusatory even, about each other. The role of a justice is to decide a case, and to educate the people who will read the opinion — first and foremost, the litigants and their counsel, and then trial and other judges who have to follow the ruling, and then the public. It is not helpful if justices are shooting arrows at each other. The SJC [Supreme Judicial Court] justices tried very hard to make sure that in our opinions there was a minimum of legal “junk language” and to explain a ruling in straightforward English so that the public could read and understand it.

GAZETTE: How did your experience living in South Africa during apartheid inform your thinking on the issue of inequality?

MARSHALL: It did not inform my thinking on the Goodridge case directly. Certainly I was not aware of any influence. Looking back, I have come to understand this: As a child, apartheid taught me that black people were inferior, that they did not deserve to be educated, that they did not deserve the right to vote, that they did not deserve the right to be elected officials. Black people were always “the other,” different, inferior, lower, not entitled to the same rights as whites. When you discover, as I did, that those views were palpably untrue, it makes one hesitate before reaching conclusory views about “the other,” whoever “the other” is, whether it’s a different religious group or a different racial group, or people of a different national origin. I tend to be far more skeptical of claims that “the others” don’t deserve the same degrees of respect, the same privileges and responsibilities that we have. I was not thinking of that when I wrote Goodridge. When you are a judge, you get the case, you look at the arguments, you look at the claims, and you decide as best you can how to resolve those claims. Of course each judge brings her own life experience — not particular views — to the work of judging. I had no view, none whatsoever, on same-sex marriage before the case was brought in the Supreme Judicial Court, and I did not, before the case was argued, have any idea what my colleagues on the court thought about the issue.

GAZETTE: Did you ever envision how swiftly the public would embrace the merits of the decision?

MARSHALL: You think the public has embraced same-sex marriage “swiftly.” But that depends on where you’re sitting. The first claims for a state to recognize same-sex marriage were brought some 40 years ago. If you are in a same-sex relationship, one might say it took 50 years before there was any momentum toward embracing same-sex marriage. That’s a long time to wait. That is one perspective. The second is this: For several years after Goodridge, there was no forward movement or there appeared to be no forward movement to recognize same-sex marriages in other states. The first cases, I think, were New Jersey and New York, both courts that I respect a great deal, but they went the other way. There was nothing to indicate within the first six years after Goodridge that any state court would follow Massachusetts. It is not unusual for a state court to be ahead of the rest of the country. The United States has seen many instances when a state court was ahead of a national consensus. The closest analogous case may be the decision of the Supreme Court of California in 1948 ruling that a statute prohibiting interracial marriage was unconstitutional. Around that time, according to Professor Randall L. Kennedy in his wonderful book “Interracial Intimacies: Sex, Marriage, Identity, and Adoption,” fewer than 2 percent of the American population were in favor of interracial marriage. That was 1948. And laws prohibiting interracial marriage finally were invalidated for all states by the U.S. Supreme Court in 1967 in a case called Loving v. Virginia. That was almost 20 years later. The decision, of course, put an end to all state statutes prohibiting interracial marriage. So, from that perspective, [for] same-sex couples, it’s moving a little more slowly. In [the] Windsor and Perry [cases],the U.S. Supreme Court did not rule that all DOMA statutes are unconstitutional.

GAZETTE: Why do you think marriage equality has been accepted so readily, as compared to Loving v. Virginia?

MARSHALL: Judging by public polls, there is certainly a big tilt in favor of same-sex marriage, especially in younger generations. If you talk to my grandchildren who are in their late teens and early 20s, for them, same-sex marriage is not even an issue. And that, I think, in part is because of the courage that same-sex couples have shown in pressing for their right to marriage. It’s not easy to bring a case like this. When the seven couples in Goodridge started their case, no state had recognized their right to marry. It takes a great deal of courage to explain to your parents and your children and your friends that you are going to challenge a long-established reality. The Supreme Judicial Court could have ruled against them, as happened in New York and New Jersey, and that must be a profoundly painful experience.

The lawyering for both the commonwealth and for the plaintiffs in Goodridge was of an exceptionally high quality. They really were. The briefs were excellent, and the way the case was presented to the Supreme Judicial Court made very clear what the issues were. But that did not guarantee any particular outcome. I’ve always felt that on this case we had the benefit of superb lawyers, and that makes an enormous difference to the justices. In the U.S. Supreme Court, because there is a very sophisticated bar that argues many cases in that court, the court typically has the benefit of excellent lawyering. In a state court, especially on the civil side, it is very expensive to litigate, and parties can’t always retain the very best lawyers because of the cost involved. But what a real difference excellent lawyering makes to judges.

GAZETTE: In a 2005 edition of the Harvard Civil Rights-Civil Liberties Law Review, the plaintiffs’ attorney, Mary L. Bonauto, said of the decision, “It was not so much a sharp, abrupt break with the past as it was the logical, if brave, next step.” Was it brave?

MARSHALL: I don’t feel that it was brave. If the bravery was anywhere, it was on the part of the litigants. I hope my opinion was well-reasoned. It’s a little nerve-wracking when scholars and others from all over the world read just one opinion of mine. I don’t mind the scrutiny of my opinions, but I wish scholars looked at a full range of my cases. Of course, every opinion of a justice of the U.S. Supreme Court is examined. Some are good; some not so good. Over time, a balanced view about the jurisprudential skills of a particular justice is formed. When only one opinion is being held up to the light, as usually happens for me with Goodridge, the light feels a little more harsh.

GAZETTE: Is this the decision you should be remembered for, or are there others that will become equally important over time?

MARSHALL: I don’t know the answer to that question. As a judge, you never think that any one opinion is more important than any other. I can think of cases where the court reversed a murder conviction or affirmed a murder conviction. And believe me, to the litigants and families of the litigants in those cases, that opinion is just as important as Goodridge. Paying attention to every case, treating every case as the most important, is how respect for the courts is developed over time. It does not matter how important the public thinks a case is. It does not matter how important politicians think a case is. Every case is important to the parties of that particular case. Every single litigant must know that the case will receive the same treatment as a well-publicized case or case represented by very successful lawyers. When I said that excellent lawyering helps the judges, it does. But where the lawyering is not particularly good, judges pay particular attention to the case because you want to make sure that justice is done [and] that the lawyering, good or bad, does not determine the outcome of the case. You cannot do this work, you should not be a judge if you are following the headlines in the newspapers. You should not look at the headlines before you decide a case, and you should not look at the headlines after you decide a case. Headlines should play no part in reaching a decision.

This interview has been edited for length and clarity.

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2013