Holding Court

Ed School graduate Margaret H. Marshall, Ed.M.’69, talks about her early activism and life away from the bench.

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When you write a court decision that profoundly changes history, it's the first thing people ask about. It becomes the lead to nearly every profile of your life. But Goodridge v. Department of Public Health, which Margaret H. Marshall, Ed.M.'69, wrote a decade ago in 2003, making Massachusetts the first state in the country to recognize gay marriage, is only one part of Marshall's story. The rest of that story, the part that really started her belief — legal or otherwise — that no one should be treated as a second-class citizen, goes back much further, to a place that she once called home: Delaware.

The year was 1962, and Marshall was spending a year in Wilmington, Del., attending the Tatnall School as a high school exchange student. It's here, she says, that her eyes were fully opened to what was going on in her own country, South Africa.

"You have to remember that my experience in South Africa was confined to my small village," she says, referring to Newcastle, located on the eastern side of the country, where she grew up with a brother, a sister, and caring, but nonpolitical parents. She loved where she grew up, but it was sheltered and as a child she sometimes wondered about what she saw and heard. Why, for example, did white South Africans change the unique African names of their servants to names like Jane or Mary? At church, why wasn't everyone allowed to sit where they wanted?

"I was raised as an Anglican [Episcopalian]. It never made sense to me that black people had to sit in the back of the church," she says. "It was not just Africans — it was Indians and other people of color. I was told it was because you couldn't possibly have a white person drink from the communion cup after a black person: whites always came first. If you're a child, you accept that as an explanation, but it still didn't make sense to me."

[caption id="attachment_10244" align="alignright" width="330" caption="Listening to Robert Kennedy in Cape Town (1966)"][/caption]

The questions were starting, but it wasn't until she was in Delaware that she saw the full picture of what was going on in South Africa. In Delaware, she watched television for the first time and read books that were banned in South Africa, such as Alan Paton's Cry, the Beloved Country. In the process, she learned about her own country's long struggle for freedom. As she told a Radcliffe audience in 2012, "the social arrangement of apartheid, the lens through which I had been taught to view all social relations, revealed itself as a distorting prism of terror and fear."

While in Delaware, Marshall also watched major social changes unfolding in the United States. A Catholic was in the White House. Fair housing policies and the Cuban missile crisis were being debated. The University of Mississippi admitted its first black student, James Meredith. Student protests on college campuses were increasing.

Marshall couldn't get enough.

"There was something about this country and its freedom that captivated me, just captivated me," she says. "In Delaware, watching the civil rights movement gave me an understanding that one can question the social order, one can fight for what you believe in."

It was also during this time that she saw the power of the courts. "I developed an incredible respect for democratic institutions, particularly the role that courts play in a democracy," she told The Boston Globe in a 1991 interview. "No one in South Africa thought about going to the courts as a means of addressing an injustice. It just wasn't done. Yet, in this country, there is this incredible respect for the institution as a place to resolve disputes. People would walk away accepting the decision."

[caption id="attachment_10245" align="alignleft" width="330" caption="Meeting with Nelson Mandela for the first time (1990)"][/caption]

By the time Marshall went back to South Africa to enroll at the University of the Witwatersrand in Johannesburg, where Nelson Mandela briefly studied, she was wearing, as she has said in many interviews, "a new pair of glasses." The blinders were off, and there was no putting them back on.

At Wits, as the university was known, Marshall joined the National Union of South African Students (NUSAS). The organization, once centered on student-focused issues like helping to negotiate better prices at the bookstore, had moved to advocating on a national scale for racial equality.

"It was only in the 1960s that we became more deeply active in politics," Marshall says. "That's not a surprise — that was when the real boot of apartheid started crushing real opposition in the country. Leaders from the African National Congress (ANC), the Pan African Congress, the Communist Party, and other groups were all banned or their leaders arrested." Mandela's life imprisonment sentence was handed down a year into her studies.

It was during this time that the United States again touched Marshall in a profound way. In 1966, her senior year, NUSAS invited Martin Luther King Jr. and then Senator Robert Kennedy to South Africa to address students. The South African government denied King's visa. Kennedy, the brother of the assassinated American president, was given a visa, but no security was provided for him during his five-day visit, Marshall remembers, and only Kennedy's wife and two aides could join him. Visas for dozens of foreign reporters who had planned to cover the tour were denied; a U.S. News & World Report correspondent who was able to get to Johannesburg had to fly out of South Africa to file his story. Because of the invitation extended to Kennedy, Ian Robertson, Marshall's colleague and the president of NUSAS, was confined to his apartment and unable to enter any university under the draconian so-called Suppression of Communism Act.

Marshall, then serving as a NUSAS vice president, later took over the presidency after another student, John Daniel, completed Robertson's term. As she said during a forum at the Kennedy Library in 2011, as nervous as she was to take on this key role, she later understood that "if you step out onto that high wire, and you somehow keep your balance, it provides such wonderful opportunity." During Kennedy's visit, she was one of the NUSAS delegation to meet him at the airport and travel with him around the country. She was there when Kennedy delivered his famous "ripple of hope" speech at the University of Cape Town, and greeted crowds of people of every color who flocked to see him as he traveled the country. As the influential Johannesburg-based Rand Daily News wrote at the time, "It is as if a window has been flung open and a gust of fresh air has swept in." For Marshall, Kennedy's words that evening, including the "ripple of hope" quotation later carved on his memorial at Arlington National Cemetery, made a huge impact.

[caption id="attachment_10246" align="alignright" width="330" caption="Taking an oath as associate justice of the state Supreme Judicial Court, with Gov. William Weld (1996)"][/caption]

"It was such an inspiring message; 1966, when he came to South Africa, was one of the worst times in our country," she says. "There had been many difficult times, of course, but at that time, newspapers were being banned, hundreds of people were being arrested, faculty members had been fired and were being banished from campus.

"And so his message was extraordinarily important. It was, first, that the values that we were espousing were not Communist ideas, as the government said; we were not being controlled by Russia. These were deep, human values that were worthy of respect. We felt so alone at the time. So to have a United States senator, the brother of the president, come and speak to us in such plain, yet inspiring language was critical. He told us that any one person can make a difference; you don't have to be the leader of a gigantic political movement to make a difference. That was a very important message because we felt that what we were doing was so insignificant. It's a message I now try to pass on to younger generations: You can make a difference."

A year later, Marshall's own message was loud and clear when she attended the funeral of Albert Luthuli, a former president-general of the outlawed ANC and winner of the 1960 Nobel Peace Prize, who had been banished by the South African government to a remote area of the country. She went, knowing that she would be one of the few whites attending.

"I remember it as if it were yesterday," she said in an interview on Greater Boston with Emily Rooney. "The church was completely surrounded by security police. At first, when I arrived, there was almost nobody there. I thought, 'This is terrible that this great man, one of Africa's greatest leaders, would have a funeral attended by so few people.' That taught me a big lesson. People started coming, of course. But the only way you could get to the church in this remote area, if you weren't white, was to walk." Later, she also learned that many mourners — they would number in the thousands by the late afternoon — had first gone to his house to pay their respects. "It was an enormous tribute to Luthuli that so many people had come from so far."

One memory from that day particularly stands out, Marshall says: Six pallbearers wearing the very recognizable uniform of the ANC brought in Luthuli's coffin, draped in the ANC flag. She was there with Steven Biko, another student activist who was later killed in police custody. "He turned to me — and I remember this, too, as if it were yesterday — and he said, 'Margie, you see, the African National Congress is not dead.'"

Danger surrounded Marshall. Her activism was worrisome for her parents. She also worried about her safety.

"Other student leaders had been arrested," she acknowledges. "But I had three things going for me. One, my race. Two, the fact that my parents were not political: the police could not say, 'She's the daughter of a political activist.' And three, my gender — a very important protective shield, ironically." Nearly all of the student activists at the time were men. (A few years later, the next female president of NUSAS would, in fact, get arrested. As Marshall jokes, "It takes a while for totalitarian governments to figure out who these uppity women are. They finally figured it out.")

Still, Marshall took precautions.

[caption id="attachment_10249" align="alignleft" width="330" caption="Taking in a game at Fenway Park with husband, Tony"][/caption]

"When I traveled from town to town, I had an arrangement to call someone when I left and when I arrived at my destination," she says, "so that if I disappeared someone would know immediately. My telephones were tapped. My letters were read. My parents weren't opposed to my views, but they were opposed to my activities. It was so unusual for a woman to be involved in politics."

The experience shaped who she would become. As Albie Sachs, a former South African activist who defended people charged under apartheid's repressive laws, told Legal Affairs magazine in 2004, "The ex-NUSAS types are determined, mature, resolute," he said. "The NUSAS experience toughened one up. It wasn't a lovely walk in the student park."

By the time Marshall arrived in Cambridge with a scholarship to study at Harvard, she says she was feeling "shell-shocked," and started having nightmares about her experiences. She was also feeling uncertain about her future. The reason she came to Harvard — to get her Ph.D. in art history, a passion she discovered as a high school student in Delaware — no longer made sense.

"Art history seemed so far removed from what I had been living," she says. She also realized that she was "an intellectual, not a scholar," and that when you start a doctoral program at one of the most prestigious universities in the world, you have to finetune your studies. "You don't just study art. You study art from a certain period and within that period a certain narrow focus on something really, really specific."

She decided to transfer to the Ed School. It turned out to be exactly what she needed.

"It was the most restorative place I could be," she says, a place to find her equilibrium. "I loved my time there. The school was in a period of great transformation, too. Unlike some parts of Harvard, the Ed School was reaching out to recruit minority students. It was also one of the most vibrant, active places on campus. Ted Sizer was a wonderful presence," she says, referring to the school's progressive, 30-something dean who favored bottom-up reform and deep learning. "It was a very turbulent time for college campuses, but at the same time, the Ed School was such an intellectually challenging place."

She remembers inspiring lectures by famed educators, activists, and writers such as Robert Cole, Marian Wright Edelman, Jonathan Kozol, and Paulo Freire, who she says "had such an impact on my life" when he taught for a year in 1969. "In explicating his pedagogical theories, Paulo helped me to understand with clarity how education can be both liberating and oppressing."

While she was a student, Marshall became active in the U.S.- based anti-apartheid movement, demanding that universities and churches divest their holdings in companies doing business in apartheid South Africa and demanding that banks extend loans to the South African government. She knew her outspokenness meant going back to South Africa would likely land her in jail. So she stayed, traveling across the United States, speaking against apartheid, and talking about women's rights and the Vietnam War. After seeing so many parts of the country beyond Cambridge, Marshall felt more certain about her future, and it meant something big: She would stay in the United States.

In 1973, she enrolled at Yale Law School. (It was the same year she met New York Times reporter Anthony Lewis at a party. She and Lewis would marry in 1984.) Career-wise, she wasn't sure about law, but she says, "I had never thought about having a career. Girls, women, didn't have careers [in South Africa]."

It turned out to be the right decision. "The day I stepped into law school, I loved it. I just loved it," she says. Initially she considered going into criminal law, defending those accused of crimes; it was all she knew about the practice of law. "Looking back, most of what I knew about law and the practice of law, I had gleaned from the Perry Mason show," she joked in a Q&A with the Yale Undergraduate Law Review in 2012. She spent a summer working for a criminal defense attorney in Boston and decided that it wasn't for her. From this experience, she learned an important lesson: "Keep moving. You will know when you have found the right place in which to work as a professional."

For Marshall, that place included working at two Boston firms: Csaplar & Bok and Choate Hall & Stewart, focusing on civil litigation. She served as president of the Boston Bar Association, the oldest bar association in the United States, and as vice president and general counsel for Harvard in the early- to mid-1990s — the first woman to hold the job.

And then came the position that would, in some ways, make her a household name. In 1996, Massachusetts Governor William Weld needed to appoint an associate justice on the Massachusetts Supreme Judicial Court, the highest court in the commonwealth. Marshall's name was on the short list, but there was initial pushback: It wasn't her turn. She wasn't a minority, and no African American had served on the court. Marshall says she understood and respected the opposition and never took it personally. Weld appointed her despite the criticism. Three years later, his successor, Paul Cellucci, named her chief justice — the first woman to hold the position in the court's more-than-300- year history.

Marshall would go on to write more than 300 opinions, but it is Goodridge that has become her legacy. When asked by reporters about the case, especially as it threads back to her South Africa experience, Marshall doesn't offer up as much as they often want. She insists the decision was based on the Massachusetts Constitution, not on a personal cause. She looked at facts, at precedent. As Legal Affairs wrote a couple of months after the Goodridge decision, "one of the strange things about judges is that even when they issue decisions that move the earth, they typically decline to explain how they arrived at their conclusions, thinking their written opinions should speak for themselves."

When asked about the effect the decision has had personally on people, Marshall again deflects.

"I would never presume to say that I had that effect on someone else," she says. "I know that every case that I decided may have had a profound effect on a person or more than one, beginning with the litigants. In that respect, Goodridge is no different than the approximately 300 other cases in which I wrote an opinion, and many hundreds more in which I participated."

Still, she's happy to receive wedding programs sent to her by friends that include passages from Goodridge.

"It's amazing that it's not just Massachusetts; it's everywhere," she said on Greater Boston last year. "I know this will sound arrogant, but I think the wedding program I enjoyed the most is the one that listed the readings for the ceremony." It included Shakespeare, T.S. Eliot, and her Goodridge opinion. "That's fairly good company."

Now retired from the court, the company Marshall keeps includes the young lawyers she mentors at Choate and the students she teaches at Harvard Law, both part time. There's travel, including back to South Africa for her 50th high school reunion and to her longtime house on Martha's Vineyard. And most importantly, there is more time with her husband, who was diagnosed with Parkinson's disease a few years ago. The couple is even able to continue a tradition they started after they married.

"We eat by candlelight every night that we have dinner together," she says. "The lights go down, and the candles get lit. For families to find time to be quiet together is such an important part of staying connected. We have trouble just 'being,' but there's real value to downtime. I don't even want background music."

For Marshall, being away from full-time work also means more time for sleep.

"Like many immigrants, I feel as if I've been working 80 hours a week since I came to the United States," she jokes. She says people ask her all the time what's changed the most in her life since she retired. She laughs. "One, I'm not awakened every morning by an alarm clock, and two, I don't fall asleep during every concert."

Does that mean Marshall was — maybe still is — a workaholic? Here she gets animated, moving from the back of the deep couch to the edge, leaning as she talks.

"I tell young people: Don't do something you don't love because if you love your work, you will always have the energy to do it, however demanding the hours," she says. "At the Ed School, I had a chance to feel myself into what I could become. I worry that young people no longer have the chance to really explore many options, as I did. I didn't have to ask my parents to take a second mortgage on their home in order for me to go to college. Tuition at Yale Law at the time I was a student was so low that I left with only small loans." Now, she says, college is so expensive. "The pressure on young people to take courses that will lead to a particular profession is enormous. I wish everybody could have the kind of education I received at the Ed School."

Editor's Note: Following the publication of this story, Margaret Marshall's husband, Anthony Lewis, passed away on March 25, 2013.