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Landmark-Ruling Judge Steps Down From State's High Court01:55
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Chief Justice Margaret Marshall, who announced Wednesday that she is retiring from the Supreme Judicial Court to spend more time with her husband, who has Parkinson's disease, is best known for writing the landmark decision that changed marriage in America. In 2003, she and three other justices ruled that Massachusetts could not deny same-sex couples the right to marry.

Mary Bonauto, the lawyer who won that case, says part of what made that decision stand out is the language Marshall used.

"The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens."

"Now, those are words that I had never before seen in a judicial opinion about gay people," Bonauto said, "so I think that court was fearless."

According to Rep. Barney Frank, the decision allayed people's fears of gay marriage.

"It gave people a chance to see the reality of same-sex marriage," Frank said, "and gave us a chance to refute the arguments about how terrible the reality would be. The problem with these things is we get into a kind-of Catch-22. You can't enact something like same-sex marriage until you reduce the prejudice against it, but you can't reduce the prejudice against it until you show the reality of it, so what Chief Justice Marshall did was break that cycle."

When Marshall was asked how she feels about people seeing gay marriage as her legacy, she gave the kind of answer you'd expect from a judge.

"On the day that the Goodridge case was argued, our courtroom was packed," Marshall said. "There were hundreds of people in the courtroom, and as I recall, the case was scheduled the first on the list."

But there were also people waiting to hear arguments in the next case, and for them, Marshall said, that next case was just as important.

Justice Margaret Marshall, in 2004 (AP)
Justice Margaret Marshall, in 2004 (AP)

Across the country, the gay marriage decision unleashed accusations of judicial activism. Marshall is dismissive of that expression.

"It is a buzz word," Marshall said, "and I think it's often attached to opinions where the person who is making the claim that it's activist doesn't agree with the outcome."

Marshall surprised her colleagues on the bench when she phoned them before making her public announcement Wednesday. One of those colleagues, Justice Robert Cordy, described what it's like to work with her.

"She can be an aggressive questioner," Cordy said. "She really has a way of getting to the core and the nub of the issue that you really have to decide. So she's fun to be on the bench with."

In 2006, for example, she drilled Assistant Attorney General Peter Sacks. His boss, Tom Reilly, had determined that a ballot initiative overturning gay marriage was constitutional.

"The reason why one has an independent judiciary ... is to protect certain groups of people," Marshall said as Sacks tried to get a word in. "It is at the core of what makes the United States different from parliamentary supremacy. To read and interpret what is happening, essentially it seems that what the attorney general has subsituted is a system of parliamentary supremacy. The will of the majority always trumps."

More than any other justice on the court, Marshall challenges the arguments of attorneys. In October, the court loses that incisive intellect.

This program aired on July 22, 2010.

Fred Thys Twitter Reporter
Fred Thys reports on politics and higher education for WBUR.

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