Retired Chief Justice of Mass Reflects on Same-Sex Marriage 20 Years Later

Twenty years since the Massachusetts Supreme Court legalized same-sex marriage in the state, retired Chief Justice Margaret Marshall, who wrote the ruling, has reflected on how times have changed.

Marshall said she is proud that Massachusetts — through what is known as the Goodrich decision — cleared the way for the U.S. Supreme Court to legalize same-sex marriage nationally.

But she and others were blindsided when Judge Clarence Thomas wrote in the decision overturning Roe v. Wade – that the court should reconsider other rulings, including previous rulings on same-sex marriage.

“I think this was a pretty shocking and startling statement in a concurring opinion where the issue wasn’t even before the court,” Marshall said. “This was, I believe, the first time in the history of our constitutional democracy where a right was recognized, existing rights were extended … and then taken away.”

While she thinks it’s unlikely that Massachusetts will overturn its same-sex marriage law, Marshall said the U.S. is still one nation with one Supreme Court.

“And if the United States Supreme Court were to choose to revisit the question, it would have profound implications for the rest of the country, even Massachusetts,” she said.

Additionally, Marshall said these implications could go beyond gay marriage and abortion.

“I think what I’m more concerned about is a national case law that says once you acquire a right, a later court can take that away.”

Marshall said the LGBTQ+ community now faces other important legal issues, including whether people can be denied services — or even health care — based on sexual orientation or gender identity.

“This is a civil right. It is not a religious right. And when you have religious statements that say, “I don’t have to have anything to do with that,” and say, I do not want to offer accommodation to a same-sex couple, I would think that would not be tolerated in the United States, but apparently that may be an open question.”

Marshall said many categories of civil rights, such as same-sex marriage, are vulnerable to state political systems.

While judges in Massachusetts are appointed until retirement, many other states elect their judges. This means that political forces can influence court rulings.

“That fundamentally undermines having an independent judiciary, because if you’re afraid of being voted out or not being reappointed, you can’t approach every case with a truly independent mind.”

Marshall hopes she would have made the same statement about gay marriage anyway. But she said: ‘Many, many people criticized the decision. Many, many people criticized me. If I had had to go through a reappointment or re-election process, I’m not sure I would have been re-appointed or re-elected. -chosen.”

Marshall worries that election systems in other states could keep some good lawyers off the bench. Before becoming a judge, she said she enjoyed her job as general counsel for Harvard University. She said she might have stayed there “if I had thought that yes, I could be appointed to the Supreme Court, but that in six years I might be out of a job if I made tough, independent decisions.”

This story was republished as part of the New England News Collaborative. It was originally published by New England Public Media.

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