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Jurist's roots deep in advocacy

Back when she was a graduate student at Harvard, far from her native South Africa, Margaret Hilary Marshall found her calling in a particular form of persuasion.

It was the early 1970s, and Marshall, then in her mid-20s and studying education, spent much of her time fighting apartheid, encouraging the US government to impose economic sanctions on South Africa. As she traveled across a foreign country, addressing nonprofit groups and churches, she found herself face-to-face with people whose world views were vastly different from her own.

"Going to Nebraska, talking to a group of religious women, that's what did it for me," Marshall said back then. "To talk to people who didn't agree with you, and who risked something if they changed, that was exciting. Those were the Americans I fell in love with."

Three decades later, observers see that same spirit in Marshall's tenure as chief justice of the Massachusetts Supreme Judicial Court, and especially in the 50-page decision she penned in favor of gay marriage. It's written in colloquial, conversational tones, with blunt sentences and hints of humor -- aimed as much at the street level as at fellow jurists, said Laurence H. Tribe, a professor of law at Harvard University.

The writing seems "designed to speak to people who may begin with an almost instinctive reaction of rejection," Tribe said. "It's fully cognizant of how it's swimming upstream."

That willingness to dive into a controversial cause is vintage Marshall, friends and colleagues say, as much a part of her image as her shock of white hair, her elegant bearing, and her distinctive accent. Throughout her legal career -- as a corporate litigator through the 1970s and '80s, general counsel at Harvard in the early 1990s, and a jurist on Massachusetts' highest court since 1996 -- Marshall, now 59, has long been known for a particular brand of advocacy. As a leader of the Boston Bar Association, she fought for family-friendly policies for women lawyers before the issue was a common cause. As a student leader in South Africa, she fought apartheid at a time when doing so carried political and personal risks.

But critics say that sort of zeal in a judge can overstep the expected bounds of impartiality. And they point, as evidence, to a speech Marshall gave in May 1999 before a meeting of the Massachusetts Gay and Lesbian Bar Association. Marshall told the group to pay close attention to South Africa's new constitution, which ended apartheid and prohibited discrimination based on sexual orientation, according to a summary of her speech from Massachusetts Lawyers' Weekly.

She also "exhorted the lawyers in the audience," the summary says, to refer to a 1988 decision in a South African court -- which decriminalized sodomy -- as they fought in US courts for equal rights.

J. Edward Pawlick, publisher of the conservative website MassNews.com and a staunch opponent of gay marriage, said he thinks Marshall should have recused herself from the gay marriage case because she gave the speech.

"She is not an impartial person in that regard," Pawlick said this summer, when the gay marriage decision was first expected. "A judge should not be going to a meeting like that that is political in nature."

Marshall's supporters in the bar -- who describe her as a mentor, a 'round-the-clock worker, and a "rock star" -- defend her speech, saying judges speak frequently to bar associations. Many are reluctant to label the woman they know as "Margie" as an activist judge, a charge leveled by many opponents of the gay marriage decision.

But many also note that Marshall has long been acutely aware of the Massachusetts high court's place in history, and is eager to preserve its legacy.

"She wants to keep making history, and have its special place continue and not be a relic -- be very present," said state Senator Marion Walsh, a West Roxbury Democrat who has developed a friendship with Marshall after years of working with her on legislation to fund and reform the judicial system.

And Marshall herself, in 1991, said the power of the US legal system was one attraction of her adopted country.

"No one in South Africa thought about going to the courts as a means of redressing an injustice," she said. "It just wasn't done. Yet in this country, there was this incredible respect for the institution as a place to resolve disputes. People would walk away accepting the decision."

Marshall was born in a very different world; the rural South African village of Newcastle, where life was segregated but apartheid wasn't the subject of daily conversation. It was only as a high school foreign exchange student, living in Wilmington, Del., for a year, that she witnessed the US civil rights movement and saw struggles for equality firsthand.

She returned to South Africa, attended college at the University of Witwatersrand, and dove into antiapartheid activism, eventually becoming national leader of the high-profile National Union of South African Students, known as NUSAS. She was noted at the time both for her passion and her looks; at the time of her election, the Johannesburg Sunday Tribune ran the headline, "The Blonde Bombshell in NUSAS Hotseat."

After coming to the United States in 1968 on a postgraduate scholarship to study education at Harvard, she was barred from returning to South Africa because of her political activities.

Marshall has recalled her mixed feelings over leaving the apartheid struggle behind. But America proved intoxicating and she became a US citizen in 1977, four years after she had enrolled at Yale Law School. Marshall threw herself into legal work at the Boston firms Csaplar & Bok and Choate, Hall & Stewart, but remained an activist in legal circles. She was president of the Boston Bar Association from 1991 to 1992 and worked on the group's 1988 gender bias study, which gained national attention with its conclusion that women lawyers were paid and promoted less than men in the field.

From 1992 to 1996, Marshall was Harvard's vice president and general counsel. A Cambridge resident, she and her husband, former New York Times columnist Anthony Lewis, occupied a place amid the area's intellectual elite.

And friends say they were not surprised when she became a judge.

Her seat on the state's highest court was Marshall's first judgeship, and was controversial at the time. When then-governor William F. Weld, a Republican, first nominated her for the court in 1996, some activists marched on Beacon Hill, saying a black jurist should have been chosen to fill the slot.

Marshall was seen as an unconventional choice for Weld; her opposition to the death penalty and her liberal ideas about criminal justice differed from his own. But Weld said at the time that he was intrigued by her personal history, her "passion for justice," and her "very healthy respect for the roles and prerogatives of other branches of government."

Three years later, when then-governor Paul Cellucci, another Republican, elevated her to chief justice, Cardinal Bernard Law raised questions about whether she was anti-Catholic, since she had, as Harvard's general counsel in 1992, criticized a Harvard Law professor for espousing antiabortion views on law school stationery.

Both times, friends worried about how Marshall was handling the scrutiny and pressure. And each time, many said, they found her surprisingly calm. "You'd call her up and say, `Margie, is there anything I can do for you?' " recalled Dawn-Marie Driscoll, a lawyer who has been a friend of Marshall's since the 1970s. "She was just so typically Margie. She would say, `It's the process. There's nothing more important than the process of appointing a judge.' " Douglas Belkin of the Globe staff contributed to this report.

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