Posted on 11/24/2003 10:41:47 AM PST by 11th_VA
Boston - The author of the landmark Massachusetts decision that gave the American gay rights movement an historic victory last week came of age in South Africa in the midst of its long battle for equality.
Chief Justice Margaret Marshall, the first immigrant and first woman to lead the state's 313-year-old Supreme Judicial Court, began her journey to the Massachusetts bench in South Africa. She was a white student leader of the anti-apartheid movement in the 1960s - a time when defiance led to bloodshed.
"Justice is not hypothetical to me," Marshall, 59, said earlier this year.
Marshall was first appointed to the bench in 1996, after four years as general counsel and vice president of Harvard University. She became chief justice three years later.
'Justice is not hypothetical to me'
Her coming-of-age in the crucible of apartheid has had a profound influence on her actions as leader of the oldest appellate court in the Western hemisphere, according to her colleagues and legal observers, and can be seen in Tuesday's decision granting gay couples the right to marry.
"She is just passionately committed to the idea that second class citizens and a permanent underclass is not only cruel to the people who find themselves at the bottom, but degrading and dehumanising to those who happen to be at the top," said Laurence Tribe, constitutional law specialist at Harvard Law School. "Her experience in South Africa has shaped her as a person and as a judge."
In the first paragraph of the 4-3 majority gay marriage opinion, Marshall states that the Massachusetts Constitution "affirms the dignity and equality of all individuals." Later she writes "It forbids the creation of second-class citizens."
Even many of those who disagreed with her ultimate conclusion admired the legal path she took.
"There's no question that the analysis of the legal principals at stake is absolutely brilliant," said attorney Roderick MacLeish, who represented students at Harvard when Marshall was general counsel and who believes the court went too far into an area better governed by the Legislature. "It will go down as one of the most significant decisions of the Supreme Judicial Court in the last 50 years."
'Her experience in South Africa has shaped her as a person and as a judge' Other critics, who believe that changing hundreds of years of marriage law will damage the fabric of society, argue that Marshall's decision was not true to her lifelong fight against oppression.
"I see this as the height of judicial tyranny, for one justice to so overlook the needs of children for the sake of pursuing her political agenda," said Ron Crews, executive director of the Massachusetts Family Institute. "I'm just astounded by the audacity of her decision."
Even before Tuesday's decision, Marshall was targeted by the opponents of gay marriage in Massachusetts, who filed suit against her in March claiming that she had violated the judicial code of conduct by making appearances before two organisations dedicated to women's rights and one dedicated to gay rights.
Marshall has declined interviews since the decision.
She has told in the past of her first visit to the United States as a high school exchange student in 1962, when she first read Alan Paton's anti-apartheid novel, Cry The Beloved Country, which was banned in South Africa.
At Witwatersrand University in Johannesburg in 1966, Marshall led several student organisations, including the 20 000-member National Union of South African students, helping to lead anti-apartheid activities and protests. She once introduced Robert F Kennedy at a rally because all of her male colleagues had been arrested.
"She says she was scared to death," said Boston attorney Joan Lukey, a close friend. "I'm willing to bet that with this decision she was scared again, but she did it because she believed it was the right thing to do."
Marshall emigrated to the United States in 1968 for masters' work at Harvard and later earned her law degree from Yale University. She passed the bar in 1976, a year before she became a US citizen. She worked at several Boston firms, specialising in intellectual property matters. She is married to former New York Times columnist Anthony Lewis.
Her appointment to the high court in 1996 was criticised by lawmakers and community activists who had been championing minority candidates. Her promotion to chief justice also generated headlines because some church leaders complained that she favoured abortion rights and was anti-Catholic.
Marshall at the time said she was aggrieved by the accusations.
"My entire life, I have tried to learn to be fair and open-minded to everybody," Marshall told the Associated Press during a hearing on her nomination. "The claim that I hold a bias against anyone is a blow to my heart." - Sapa-AP
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