Why Massachusetts led the way on same-sex marriage

By Jesse Wegman

Saturday, May 2, 2015 | 2 a.m.

Margaret Marshall, the former chief justice of the Massachusetts Supreme Judicial Court, has heard the question before: Did she ever imagine that the nation’s attitudes toward same-sex marriage would change so fast?

People ask because she was the first justice in the country to issue an opinion legalizing same-sex marriage, which she did, for a 4-3 court, on Nov. 18, 2003. The ruling, Goodridge v. Department of Public Health, became an instant political and cultural flash point, equally extolled and excoriated across the country.

But the legislative response was overwhelmingly one-sided: within a year, 11 states passed constitutional bans on same-sex marriage. (Massachusetts voters tried, and failed.) Some observers credited the political energy generated by those measures with helping re-elect President George W. Bush to a second term in 2004.

Fast forward 11 years and the nation stands on the brink of a Supreme Court ruling that could well reject all of those bans and reach the same conclusion Marshall did in 2003. On Tuesday, the justices heard oral arguments in four cases challenging marriage bans in Kentucky, Tennessee, Ohio and Michigan. The court will consider two questions: Does the Constitution require states to license marriages between people of the same sex, and if not, does it at least require them to recognize lawful same-sex marriages that were performed in other states? A decision is expected by the end of June.

To many Americans, the shift on this issue has seemed to happen at lightning speed. To Marshall, it all depends on where you’re standing.

“From a historian’s point of view, they say, ‘Oh, it has moved so quickly,’” she said on a chilly, early-spring morning in Cambridge, where she sat in her apartment overlooking a bend in the Charles River. “But from the point of view of the litigants and the families who weren’t able to marry in the past, it’s a very different perspective. Remember, the first lawsuit was filed almost half a century ago.”

Marshall, who retired from the bench in 2010 and now works in private practice, still shows surprise at the intensity of the reaction to her opinion. In her mind it was an incremental decision — the next logical step in a state that already had allowed same-sex couples to serve as foster parents and to adopt children. But it’s not hard to see why the ruling landed as hard as it did. Even now, after more than 40 federal and state court rulings striking down same-sex marriage bans in the past two years, the Goodridge decision remains one of the most full-throated and eloquent testimonials to the personal and cultural significance of marriage.

“Because it fulfills yearnings for security, safe haven and connection that express our common humanity,” Marshall wrote then, “civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.” Decisions about sexual intimacy and raising children are, the opinion said, “among the most basic of every individual’s liberty and due process rights.”

And extending these rights did not put the institution of marriage at risk, she wrote.

“Alarms about the imminent erosion of the ‘natural’ order of marriage were sounded over the demise of anti-miscegenation laws, the expansion of the rights of married women, and the introduction of ‘no-fault’ divorce. Marriage has survived all of these transformations.”

Marshall grew up in South Africa, where as a white university student she became deeply involved in the growing anti-apartheid movement. (Her husband was the former New York Times columnist Anthony Lewis, who died in 2013.) As a result, she had what she calls a “very textured” understanding of race and the law. By contrast, until the Goodridge case reached her court, she said, she had given no thought to the question of same-sex marriage. But she allows that her approach may have been influenced by those earlier experiences.

“If you grow up saying, ‘Black South Africans can’t fill-in-the-blank,’ and then you look at it and say, ‘Well, that doesn’t make any sense!’” she said. “So here’s the state saying, ‘Gay people can’t’ — well, what are you saying they ‘can’t’? They can’t love each other? I don’t think that’s going to hold up. They can’t be parents? I don’t think that’s going to hold up.”

Marshall believes a key reason for the country’s relatively rapid attitude change is the weddings themselves. As same-sex ceremonies became commonplace, she said, more people were witnessing the happiness on people’s faces that you see when they have made this momentous life commitment.

“It is saying, ‘This is the one person that I love.’ You let everyone share in that, and the ripple effect was very quick.”

Jesse Wegman is the legal and Supreme Court writer for the New York Times.