A federal judge struck down Wisconsin's ban on same-sex marriage Friday, making it the 20th state to allow same-sex marriage. Weddings are taking place even though the Wisconsin attorney general is seeking an emergency order to stop them. Also Friday, seven couples challenged North Dakota's law prohibiting gay marriage, making it the last state to have its ban on same-sex marriage challenged in court.
The landscape of same-sex marriage in the United States has changed rapidly since Massachusetts became the first state to legalize it in 2003.
Margaret H. Marshall, the former chief justice of the Massachusetts Supreme Judicial Court, wrote the majority opinion in the landmark case Goodridge v. Department of Public Health, which legalized same-sex marriage in Massachusetts. Released on Nov. 18, 2003, the 4 to 3 opinion was the first of its kind by an appellate court in the United States. The ruling gave Massachusetts 180 days to change its marriage licenses and rules, and same-sex couples started to wed in the state on May 17, 2004.
Gay-marriage cases wound their way through state courts, then some were filed at the federal level. A federal case from New York challenging the Defense of Marriage Act made its way to the Supreme Court; last year the high court struck down key parts of the act. It also turned away a case involving California's prohibition on same-sex marriage. Since then a number of federal judges have struck down state bans.
Marshall, now senior counsel at Choate Hall & Stewart in Boston, spoke with The Post about the decision, what she says to people who thank her for writing it, and the changing landscape of same-sex marriage across the country. Her remarks have been edited lightly for clarity.
After the decision was released, the backlash against the court was fierce. President George W. Bush lashed out at "activist judges" and Gov. Mitt Romney accused the court of "judicial activism." What was it like to have the criticism become so personal?
"It was surprising and painful, for two reasons. First is I have such a high regard for the American democratic system. I came as an immigrant [from South Africa]. The rule of law is the foundation to our success as a nation, and second, because you don’t expect that if you are a judge. It’s very seldom that a powerful political figure will attack an individual judge in that way. Or that had been my experience. Even with some of the most controversial United States Supreme Court decisions, there tends to be an attack on the justice or an attack on the majority of the justices. But it was fairly directed at me, and on the democratic liberal side, there were people who said things like, 'Well, why didn’t you hold the decision until after the November election?' I don’t think they understood what the implications for that would be for our constitutional system or that you elected George Bush," Marshall said.
It is rare, she said for a state supreme court decision to get so much attention. "I don’t mean to minimize it, state supreme courts have made major decisions throughout our country’s history. But unlike the United States Supreme Court, we do not speak for the nation. We certainly do not speak internationally. So when the Economist magazine and other international publications commented on the decisions when they did, when all around the country this became an issue, did I anticipate that there would be media interest? I don’t know whether we anticipated it in that sense."
Ten years ago, same-sex marriage was legal only in Massachusetts. Now about half of the nation lives in a state where same-sex marriage is legal. Many say the changes have come extremely fast since the Goodridge decision. Do you agree?
"It is often people who have had access to these rights and responsibilities who think of it as speed, but for those who have not had access to these rights and responsibilities they may view it differently, and they do view it differently. Because the time between 2003, when the Goodridge case was decided, [and now] -- it did not change the law outside Massachusetts. And now it is a decade later. So think of it through a child’s eyes. A couple wants to adopt and raise a child. And they must wait for 10 years, then file a lawsuit. That’s a long time for a couple to wait. It might be that the woman is 35 and she’s now 45. That’s a biological challenge. It might be that there’s a particular child a male gay couple wants to adopt and the child is 2 or 3 or 4 and the child is now 12 or 13 or 14. Speed is through the eyes of the beholder. And the first legal case raising a right of access to marriage for same-sex couples was filed close to 50 years ago."
Ten years after the decision, Marshall still receives wedding ceremony programs that quote the decision and thanks from married same-sex couples around the country and the world.
"I’ve started receiving wedding ceremony programs, which were clear they were quoting from the Goodridge opinion. The first ones were from heterosexual marriages. And as recently as today, somebody came up to me at an event that I was attending and said: 'I just want to thank you. I came from Oklahoma, I fell in love with my now spouse, and I came to Massachusetts. And we are now happily married, and you changed our lives.' And that’s 10 years later."
Marshall said she does not feel personally responsible for the decision.
"I don’t mean to be trivial in my response, but I say words one way or other to say it wasn’t me personally. It was the Constitution and the words of the Constitution. And the Massachusetts Constitution is a very powerful Constitution. It begins with the words 'All people are created equal.' That’s the opening sentence."