Two decades since the Massachusetts Supreme Judicial Court legalized same-sex marriage in the state, retired chief justice Margaret Marshall, who wrote the decision, has been reflecting on how times have changed.
Marshall said she’s proud that Massachusetts — through what's known as the Goodrich decision — helped pave the way for the US Supreme Court to legalize gay marriage nationally.
But she and others were blindsided when Justice Clarence Thomas wrote – in the decision overturning Roe V Wade — that the court should reconsider other rulings, including on same —sex marriage.
“I think that was quite a shocking and startling statement in a concurring opinion where the issue was not even before the court,” Marshall said. “This was the first time, I believe, in the history of our constitutional democracy, where a right had been recognized, expanding existing rights, and then had been taken away.”
While she thinks Massachusetts is unlikely to roll back its law on gay marriage, “we are one nation and we have one United States Supreme Court,” she said. “And if the United States Supreme Court chose to reexamine the question, it would have profound implications for the rest of the country, even Massachusetts.”
Moreover, Marshall said those implications could go beyond gay marriage and abortion.
“I think what I'm more concerned about is a nationwide jurisprudence that says once you have secured a right, a later court can take away that.”
Marshall said other important legal issues are now facing the LGBTQ community, including whether people can refuse service, or even healthcare, based on sexual orientation or gender identity.
“This is a civil right. It's not a religious right. And when you have religious claims saying, ‘I don't have to have anything to do with that,’ saying, I don't want to offer accommodation to a same sex couple. I would think that that was not tolerable in the United States, but apparently that could be an open question.”
Marshall said many categories of civil rights, like same-sex marriage, are vulnerable to state political systems.
While Massachusetts judges are appointed until retirement, many other states elect their judges, and that means political forces can affect court rulings.
“That fundamentally undermines having an independent judiciary, because if you worry that you're going to be voted off or not re-appointed, you cannot come at every case with a truly independent mind.”
While Marshall hopes she would have made the same ruling on same sex marriage regardless, “many, many people criticized the decision. Many, many people criticized me,” she said. “Had I had to go through a re-appointment or re-election process. I'm not sure that I would have been reappointed or re-elected.”
Marshall worries that electoral systems in other states could keep some good lawyers off the bench. Prior to becoming a judge, she said, she had a good job as a general counsel for Harvard University. She said she may have just stayed there “if I had thought that, yes, I could be appointed to the Supreme Judicial Court, but I might be out of a job in six years time if I make difficult, independent decisions.”