LINDA WERTHEIMER, HOST:
The justices of the U.S. Supreme Court are in the midst of writing decisions in two, major, same-sex marriage cases. While the rest of us wait, though, we'll take a look at the judge who 10 years ago, wrote the first decision legalizing same-sex marriage. It was a decision based on the Massachusetts constitution.
RENEE MONTAGNE, HOST:
She was the chief justice of Massachusetts' Supreme Judicial Court. Margaret Marshall - now retired - is a white, South African immigrant to the U.S., appointed by a Republican governor to serve on the state's high court; and promoted to lead that court by a second Republican governor. NPR legal affairs correspondent Nina Totenberg has this profile.
NINA TOTENBERG, BYLINE: Margaret Marshall grew up in a small, South African village, the un-political daughter of un-political parents. But in 1962, she came to Wilmington, Del., as a high school exchange student. It was a tumultuous time in the U.S. - the civil rights movement was heating up; there was violence in the South; people died - but none of that discouraged her.
MARGARET MARSHALL: It was raucous, and it was challenging and it was difficult. But nobody suggested that one would be imprisoned simply for expressing a view or having an idea, or reading a book or attending a movie.
TOTENBERG: All things that were crimes in South Africa. And she was experiencing something else, too.
MARSHALL: A recognition that one could question - one could question the government, as my American family did every day after we listened to Walter Cronkite.
TOTENBERG: And then there was the library. In South Africa, she never could pick out any book to read because so many were banned. Now for the first time she could read anything, including Alan Paton's "Cry, the Beloved Country."
MARSHALL: I think I learned more about South Africa during that year in Wilmington, Del., than I had learned in my entire life.
TOTENBERG: She returned to South Africa after that year, but she was no longer the same girl.
MARSHALL: Once one's mind is opened, it's very difficult to shut it again. And I literally felt as if the blinders had been removed from me, and so I began to see and observe and perceive.
TOTENBERG: By then, Nelson Mandela was already in prison. In college, Marshall joined the National Union of South African Students, a coalition of student councils opposed to apartheid. And she began attending the trials of anti-apartheid activists, including the lawyer who had represented Mandela.
MARSHALL: I'm not quite sure why I did that. But I felt, in some way, that I had to bear witness in that fundamental, religious, Christian sense. Every time, of course, I went to court and sat in the whites-only section of the public galleries, I knew that I was being watched by the security police.
TOTENBERG: Almost without knowing it, she was - as she would later - be challenging the authority of the state to unilaterally define people. Then came a turning point.
MARSHALL: 1966 was one of the bleakest years in a bleak time, in South Africa. All of the political leaders - who your listeners will recognize - were in prison or out of the country, or killed. And there really was no vibrant opposition.
TOTENBERG: Her student organization invited Sen. Robert Kennedy to come. The speech he delivered was a lifeline.
MARSHALL: It was a clarion call at a time when we felt so marginalized.
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SEN. ROBERT KENNEDY: Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope. And crossing each other from a million different centers of energy and daring, those ripples build a current which can sweep down the mightiest walls of oppression and resistance.
TOTENBERG: In 1968, Marshall returned to the U.S. for graduate school. She didn't intend to say.
MARSHALL: And then, like generation after generation of immigrants, I fell in love with the United States - deeply in love with this country. And frankly, it's a love affair that has never ended.
TOTENBERG: The United States was, she says, a safe haven for her. But now that she was safe, she began to have terrifying nightmares; a sort of PTSD, harkening back to her life in South Africa.
MARSHALL: I could be arrested in the middle of the night and then would just disappear. And no lawyer would have access to me; no family member would have access to me. I would simply disappear.
TOTENBERG: Over and over in our interview, she returned to one theme - the rule of law. Under apartheid in South Africa, the law was an instrument of oppression. Parliament passed laws, but no court could invalidate them - completely different from the American system of a written Constitution and a Bill of Rights.
MARSHALL: You as an individual citizen, you have the right to challenge a law that your government enacts through its normal process.
TOTENBERG: Although she had not planned to be a lawyer, her path in the U.S. led eventually to Yale Law School, private practice, president of the Boston Bar Association; followed by a position as vice president and general counsel at Harvard University, and then the state's highest court. Indeed, if you look at Margaret Marshall's life and career, you might reasonably conclude that she's a combination of the ultimate establishment figure and the ultimate anti-establishment figure.
She laughingly concedes the point, knowing that however distinguished her 14-year career on the bench, she'll be remembered most for her 2003 opinion striking down the state law that banned same-sex marriage. She maintains that she simply had not focused on the issue at all until it reached her court, and that she had no tingling feeling of a historic moment.
MARSHALL: Massachusetts is one, small part of the United States. It never occurred to me that this would be, in any sense, a groundbreaking decision.
TOTENBERG: What did surprise her, she says, was the huge national - even international - reaction afterwards, both pro and con. The heart of the decision, she says, is in fact the answer to this question, posed at the U.S. Supreme Court by Justice Antonin Scalia when the issue was argued there in April. Just when, he asked, did it become unconstitutional to bar same-sex marriage?
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ANTONIN SCALIA: When did it become unconstitutional?
MARSHALL: And my answer was very clear: when the states started giving huge benefits and privileges to one section of the population. If you're married, you have just enormous benefits. And if you're in the same committed, lengthy relationship but you happen to be within the same gender, you have none of those benefits and protections.
TOTENBERG: And what if the Supreme Court reaches a different conclusion than the one reached by her court? Marshall is unperturbed by that possibility, noting that state courts often lead the way decades before the U.S. Supreme Court comes around. In 2010, Marshall, then 65, stepped down from her post as chief justice.
MARSHALL: I retired because my beloved husband, Tony, had been diagnosed with Parkinson's disease. And I retired in order to spend more time with him.
TOTENBERG: In March, Anthony Lewis, a Pulitzer Prize-winning journalist, died. Marshall now has returned to her old law firm, where she mentors young lawyers but does not appear in court. And she teaches at Harvard Law School. And like everyone else, she's waiting to see what the U.S. Supreme Court does on the issue of same-sex marriage.
Nina Totenberg, NPR News, Washington.
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