Margaret's Choice-A Fantasy
Margaret H. Marshall always had mixed feelings about being a judge. She loved the law, the dense interplay of statutes, precedent and values tightly argued. She could pick up each thread and follow each detail of any brief. She could usually have done a better job, so she would fill in the blanks of the lesser skilled advocates, when they were arguing a position she supported, that is.
She had made it to the top of the heap in Massachusetts, from Harvard General Counsel, to associate and now as Chief Justice of the Supreme Judicial Court of the state. There was a downside to her position, that she could take no active part in politics. Margaret Marshall, not being active in politics, who would have believed it.
Her earliest memories from her native land where of politics; hard fought, life changing, revolutionary politics. All through school and then as president of the National Union of South African Students, she led anti-apartheid activities and protests amid threatening government opposition. It defined who she was and was to be.
In spite of variations among individuals, it usually turned out that the Right were the ones with the billy clubs who wanted to keep what they had, and the Left was trying to give the blacks, or the workers, or women an even break. She felt no guilt about being called a Liberal.
She loved her adopted country, and her great life. Married to Anthony Lewis, an older retired columnist of the New York Times and surrounded by the elite of Harvard, she was both challenged and revered. Having no children of her own, her concern for the oppressed seemed especially intense, as if infused with a maternal desire to take care of them.
Her reverence for the American legal system, as close as she came to a religious belief was shattered after the election of 2000. She watched the Republican goons close down the ballot counting in West Palm beach. She watched as each spokesman recited their talking points, repeating nonsense so often it drowned out real discussion. She carefully studied the legal arguments in each stage of litigation, up to the Florida Supreme Court, praying that justice would prevail over demagoguery.
This was why she entered law. It was politics of the mind. No violence, no pickets, no strikes; just the brightest people using the weapons of precedent, statutes and logic. She noted the words of the Florida constitution, “Notwithstanding any law or regulation, the manifest will of the voters will be the ultimate outcome to be achieved” There it was in the foundational charter of the state. All of the stupid errors because of defective equipment and botched butterfly ballots will be overruled, and the Democratic majority will prevail”
When the Bush people requested an emergency injunction from the Federal Supreme Court, none of the commentators took it seriously. How could they, this was a state issue. And if there were to be a contested slate, if the state courts and the Governor sent different electoral slates to the House of Representatives, the Constitution, which is almost always vague, gives specific rules for deciding which to accept.
And then that Friday, out of the blue, the word came down, The Supreme Court had enjoined the state of Florida from continuing counting the ballots. It was over. They scheduled hearings for Monday, but it would be too late. It had taken a massive effort to mobilize this recount project, and once dismantled it could not be restored in time. This was not a delay, it was a death knell.
She didn't know whether to laugh or to cry when she read the final decision. Scalia could make shit look like Foie Gras, but he couldn't get rid of the smell. She read Justice Stevens' summation, “We may never know who won this election but we know who lost, every judge in every courtroom in every state where justice is pursued.”
And then came 9-11. A few weeks afterward the New York Times editorialized that President Bush has achieved a new gravitas. Not to Margaret. She recognized the same arrogance of power, the same mixture of false patriotism mixed with religious fervor, the same threat against dissent that she had seen in South Africa as a child. But now she could do something about it. She could command a majority of her court that would send a message to the Republicans that they could not ignore.
Prohibition of Gay Marriage was the final stand of bigotry in America, and she had the ability abolish it in her state.. While others would have avoided this issue, she welcomed it. When it landed in her court in March, she took the lead in lining up support. The final decision had been written and she had the draft on her desk. Her husband, the Harvard crowd, all her friends would be proud.
She didn't care a bit about the anger from the right wing bigots who would attack her. But Martha's reaction still got to her. Martha Sosman had been her buddy from even before she got on the court. There was a bond, almost like high school best friends that belied their different backgrounds. There were a few cases where they were on opposite sides, but no biggies, just a jurisdictional dispute and a case of paternal rights. They actually gained more mutual respect for each other from them.
Martha had written her dissent on the Gay Marriage case with two justices concurring, but Margaret had her majority of four. They were solidly behind her decision and it would become law. And to underline her determination, the order for compliance would not be like Earl Warren's desegregation decision with compliance ordered, “In all deliberate speed.” but to be implemented in six months. The sound of her gavel was to be heard throughout the state and echo across the country. The legislators, the religious nuts, and the people in the state just better get used to it.
Now, the Martha that stood before her in her office was not the woman she knew. With a cold intensity she spoke, “Margaret, you are about to make a mistake, that you just may regret for the rest of your life.” “Now come on,” Margaret laughed, “What could happen, I'm going to get impeached.” “No, not a thing will happen to you, you will be the hero of Harvard Square, you will be written up in Harpers, and Spielberg may even make a movie of your life. You will be just fine, it's the country that will suffer.”
Margaret wasn't used to this. She was prepared for anger from the rabble, from the right wing media, but not for this. She was stunned as Martha, with a fire she had never seen, went on, “Your friends may all think you're a hero, but they don't make a majority, they don't elect congress, or presidents. Your friends are already hated by the people out there, and you are going to make them despised. Your husband, Anthony gets the same one vote with his Pulitzer prize as some poor slob with an eighth grade education.
They don't have much, those people who hate their jobs and struggle to get by. But they have a dream, from when they are little kids. They can have this identity, an identity as a husband, as a wife, something that transforms raw sex into something holy. It's all in that marriage ceremony. They are now Husband and Wife, all they have to do is say some wows and they belong. It's all pretty fragile with them, and you are going to break it right over their heads.
Martha stopped. She realized she had gone too far. Margaret composed herself and said, “But all that you say, all the good, all the comfort from being married, why can't everyone have it. Thats all I'm doing, giving this good thing to everybody.”
“It's just not going to work,” Martha responded. “Marriage is this magic device that turns passion into love, but it also does something else, it restricts and channels this passion. You can't touch Mommy in certain places, same with little sister, and something else that you learn, the rules for those like you, with the same genitals is different than the rules for the other sex. Forget the crap that the bible says sodomy is a sin. It's a sin because it breaks the rules. Not your rules, not my rules, but the rules of most of the poor souls out there. They have followed them, whether they like it or not. You will show them that they are all narrow minded bigots. They can't provide a steady living for their family,and if their kids get sick they may not even be able to take care of them. And you are destroying what little they have.”
Martha was exhausted, so now calmly she continued, “And they will show their appreciation. Those Right wing bastards will pounce on this and never let up, they will have permanent residence in the White House. They can take away their health care, make sure the rich get richer and the poor better damn well have their kids, whether they like it or not. You just don't know what you are doing. You just don't know...” With that, she turned and walked out the door.
Margaret tried to continue her work, but it was impossible. She was flushed, shaken. She told her secretary she had a headache and went home. She tried to talk to her husband about the conversation, but she couldn't. This was her best friend challenging her most basic beliefs. There was no one to talk to.
That night sleep would not come. Martha's words kept running through her head. Her answers to her, her logic, her well honed jurisprudence seemed hollow, like she was missing something. When revelry finally melted into dreams, there was no peace. She saw the crowds, shouting in unison, the signs, “Down with activist judges.” She saw the news bulletin on Fox News, the announcer with barely controlled glee saying, “The votes for those who came out to support the anti-Gay marriage amendments made the difference. George W. Bush has been re-elected President.”
Then there was this wood paneled room, Anton Scalia, no longer only with two buddies, now there were five, all in their robes with the confidence of absolute power. They had won the ultimate prize. The highest court of the land will be theirs for decades. It will be their God who will now be the final authority. Lives of the unborn, unwanted by parents, will be under His protection, as will the the aged who dearly want to be rid of their mortal coil. Tie their hands and let them await God's will, shall be the law of the land. The malformed, unloved and unwanted will be under Gods protection, right up to the time of birth, when neither God nor state will be any longer interested.
As Margaret watched, trapped in a dream more real than any reality, she heard a scream from somewhere, a terrible swelling moaning cry that finally broke through. Anthony had been shaking her for what seemed like minutes. Her heart pounding, she opened her eyes. It had all been a dream, but it seemed so real. She was a different person than the one who went to sleep only hours before.
The next day she called a conference of the court and said she had reconsidered her position on the case before them and required a postponement. In the next few weeks, she explained to each of the justices, with thoughtfulness and tact, that although she felt gay marriage is something to be desired, it should not be a decision of the judiciary, but rather of the elected representatives of the people.
Martha was the last person she spoke to. They tried to be professional, but couldn't. The tension was resolved in tears, followed by shared laughter, a release neither of them had known for many decades. The final opinion, written by the two of them, and unanimously endorsed by the court,was something new in the annals of law. The ideal of expansion of the right to marriage to all was endorsed, but so was the appreciation of what this would mean. The value, the vital function, of tradition was articulated outside of the idiom of religious absolutism. There was an affirmation of the proper role of the court, and what should be left for other branches of government, and other less definable processes of societal change.
Although scholarly and tightly written, the decision was widely and extensively quoted in the press. The reasoning made intuitive sense, and for once the people of the country felt connected to those who made their laws. Shortly afterwards, and little noticed, a web site was shut down. SaveTraditionalMarriage.org had simply stopped getting hits.
There were no referendums on Gay Marriage in November of 2004, so the turnout in key states was rather low. Perhaps that is why President Bush lost by 37 electoral votes.