A Judicial Orientation

by Chuck Colbert | photos by Marilyn Humphries

Out Massachusetts judges Linda Giles, David Mills and Barbara Lenk

Openly gay judges in Massachusetts may be ho-hum today, but it wasn’t always so, and their importance can’t be underestimated; here’s the untold story Early on, their appointments posted significant milestones along the legal road to full LGBT liberty and equality. Back in the day, an openly gay or lesbian judge was a big deal.

Now, it’s rather ho-hum, but the significance of their nearly two-decades-long presence in the Massachusetts judiciary— from municipal to district to probate to superior and appeals courts—is not lost on many.

Openly gay and lesbian judges and changes in the law have made the court system “a much friendlier place for LGBT people,” explains Joyce Kauffman, a Cambridge-based family law attorney in private practice.

“The attitude among court personnel, attorneys, and judges has gone through a sea change. LGBT litigants no longer fear blatant homophobia.

It’s a regular occurrence that they are now treated with respect.”

“Out gay and lesbian judges, just by their presence on the bench, create a shift in the culture,” says Katherine Triantafillou, a founder and former co-chairwoman of the Massachusetts Lesbian & Gay Bar Association (MLGBA) (www.mlgba.org), a professional association of lawyers created in 1985 to provide a “visible presence” within the state’s legal community and to impact judicial appointments.

“We need out LGBT judge role models as emblems for our kids,” adds Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders (GLAD) (www.glad.org). “We do want the judiciary to look like the population.”

For a legal system to deliver justice, people must believe they will be heard fully in a court of law and that their disputes will be decided fairly. “When all is said and done, legal issues are profoundly human issues,” explains Appeals Court Associate Justice Barbara Lenk. “The courts deal with what really matters to people, such as personal and family relationships, property rights, business dealings, the consequences of criminal conduct. The law draws upon all of life.”

Also, she says, the law “evolves and develops. It is not carved in granite. Judges do not enact laws, but it is our job to interpret and apply them in specific circumstances. Those circumstances change over time, and that has to affect how the law is understood and applied.

Otherwise, the law would become too remote from life as it is actually lived.” For example, it would not do for divorce law to only use as its model of marriage the wage-earning husband and stay-at-home wife.

“If that were the only paradigm, few would now fit.”

Her observation proves a point “You have to have different voices and different points of view involved in understanding and applying the law.

Members of minority groups may see certain things differently based on their own experiences, “ Lenk explains. “The law has to remain reflective of our common life, and at the same time remain neutral and impartial across the board.”

Striking a balance between accommodating change and respecting precedent is a “challenge,” acknowledges Lenk, ever mindful of John Adams, author of the state’s Constitution, who wrote in The Declaration of Rights about the requirement for judges to be “as free, impartial, and independent as the lot of humanity will admit.”

 Nearly Twenty Years Of Out Gay Judges Over the past two decades Democratic and Republican governors alike have appointed nearly two-dozen openly lesbian and gay justices. In addition to Barbara Lenk, those publicly out judges include Dermot Meagher, Linda E. Giles, David A. Mills, and Maureen H.

Monks, among others. MLGBA also celebrates the appointment of Angela Ordoñez as associate justice of the Norfolk Probate and Family Court and Stephen Abany’s appointment as first justice of the Haverhill District Court.

During the same 20-year period, the Legislature and courts have been good to gay citizens. In 1989, for example, Massachusetts passed legislation protecting gay men and lesbians by adding “sexual orientation” to the state’s civil-rights laws. The law banned discrimination in employment, housing, credit, public accommodations, and education.

In 1993, the Supreme Judicial Court ruled that nothing in the Massachusetts adoption law prevents a non-biological parent from coadopting her partner’s child.

In 1995 state hate-crimes laws were updated to include sexual orientation, which means that assaults and batteries committed for the purpose of intimidation are subject to enhanced penalties.

And in 2003, the Supreme Judicial Court ruled in its historic Goodridge decision that same-sex couples have the civil right to marry in Massachusetts.

Party Of Five: Out Judges’ Stories

While much has been written about openly gay lawmakers, the state’s out gay and lesbian judges are, until now, largely an untold story.

That is partly because the auras of judges are elusive; they are limited by what they can and cannot say outside of court or in written opinions. Their public life is also constrained; they cannot participate in partisan politics or make financial contributions to candidates.

Attending gala fundraising and dinner events for advocacy organizations is also prohibited.

Yet, judges have a civic duty to educate the general public about the judicial system, the courts, and the law.

From the following brief narrative sketches, several common threads emerge. Most important, all judges take an oath to be neutral, fair and unbiased interpreters and arbiters of the law. At the same time, they uphold the highest standards of professionalism and adhere to the strictest judicial codes of conduct and ethics.

They support diversity in the justice system, believing qualified gay and lesbian lawyers have every much a claim as other minorities appointed to the bench.

They also defend the independence of the Massachusetts judiciary, one of only a few states and the federal government in which judges are appointed (not elected) for life (until age 70) “as long as they behave themselves well” and whose salaries are “established by standing laws,” according to the Declaration of Rights of the state Constitution, the oldest working constitution in the world.

These five justices line up right behind an independent judiciary’s strongest proponent, John Adams, who in 1776’s Thoughts on Government wrote: “The dignity and stability of government, in all its branches, morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinctive from both the legislative and executive, and independent upon both, as both should be checks upon that.”

Through separations of powers, among the executive, legislative, and judiciary, and checks and balances on each of them, Adams sought a “government of laws and not of men,” according to Article XXX of the Massachusetts Constitution.

The Honorable Dermot Meagher

Governor Michael S. Dukakis appointed Dermot Meagher in 1989. For 17 years, until he retired in 2006, Meagher served on the Boston Municipal Court. Meagher’s appointment and confirmation by the Governor’s Council made local LGBT history. He is the first openly gay judge in Massachusetts.

The Boston Municipal Court, or BMC, is a separate and distinct entity within the Massachusetts Trial Court system, which consists of a total of seven different departments.

In addition to the BMC, these include Superior Court, District Court, Juvenile Court, Probate & Family Court, Housing Court, and Land Court.

Judge Meagher presided at civil and criminal bench and jury trials, as well as pre-trials. The Boston Municipal Court hears misdemeanor criminal cases and many felony cases, including assault and battery, larceny, breaking and entering, sex offenses, drug cases, traffic offenses, and driving under the influence of alcohol.

The BMC also hears a variety of civil cases, principally personal injury, property damage, and contract disputes. Finally, the BMC handles cases involving retraining orders and protection against spousal abuse and domestic violence.

A trailblazer, Meagher’s application for a judicial appointment confronted Dukakis and others with two separate realities. Meagher was open about his alcoholism and his being gay.

Both issues came up when Meagher met with the governor for an interview.

Anyone interested in being considered for a judicial appointment must complete a comprehensive 80-page questionnaire. The process also consists of vetting by a Judicial Nominating Committee, as well as a joint bar association advisory committee review, with concurrent due diligence and state police background checks— all before a list of names is submitted to the governor for consideration in filling vacancies on the bench. After the governor selects nominees, the Governor’s Council, an elected body with roots dating back to colonial days, has the final say on confirmation.

A daunting and searching questionnaire is the point of departure for would-be judges.

Requiring detail and self-reflection, it asks applicants about public service, activities and organizations, and one’s entire employment history. When he first applied in 1985, Meagher’s job history involved gay people and people in recovery. For example, then Boston Mayor Raymond Flynn appointed him as the gay and lesbian member to the original Boston Human Rights Commission, where he served until becoming a judge. Additionally, Meagher was a founding member of the MLGBA. And he had served on the board of directors for GLAD, the legal services committee of the AIDS Action Committee, and the Governor’s Advisory Commission on Alcoholism and Substance Abuse.

The questionnaire also asked point blank: “Is there anything in your background, which would be embarrassing to the governor, or which could unfairly be so interpreted by others?” For Meagher, there was no other way but to come out.

During an interview with Dukakis he explained the necessity to be open about his true self. “I wouldn’t want to be a judge without your knowing that I am gay. I am what I am,” he told the governor. “You know that it’s a dilemma for us to come out or not. We can hide with all the psychological damage that brings, or if we say it, we’re thought to be militants.”

Besides, Meagher explained, “If I didn’t tell you I’m gay, it makes me just one more Irish Catholic guy applying for a job where there are already a surplus.”

On May 3, 1989, at his swearing-in ceremony, Judge Dermot Meagher spoke of the historic importance of his appointment, in very personal language. “Denial is not only the refusal to acknowledge an existing fact, but also the inability to see it in the first place,” he said. “Both kinds of denial were in my life for a long time, as I am sure they have been for other gay men and lesbians, and we have all lived with the fear of exposure. We all deal with it in different ways.”

Afterwards, Meagher threw a party at Faneuil Hall for the 800 people who showed up for the swearing in.

The Honorable Linda E. Giles

Linda E. Giles, Associate Justice of the Massachusetts Superior Court, has served there since Dec. 15, 1998, when Governor Paul Cellucci appointed her.

As a Superior Court justice, Giles hears the headline-catching cases—trials including major felonies such as murder, rape, conspiracy, and business interest and trademark disputes.

The Superior Court has the broadest, most far-reaching geographical jurisdiction, the entire state, both criminal and civil. In fact, the Massachusetts Superior Court is set to celebrate its 15oth anniversary next year.

“I love the Superior Court,” she says. “We are trial judges, getting to witness all the drama. We also get to write decisions. I love the drama, and I love to write.”

Giles also loves her job. “I am a paid ruminator, paid to ruminate on law,” she explains.

“How many people have you met in your life who in their work can say they are getting paid for the pure study of their passion? I am passionate about the law, and I get paid to engage in the pure study of something about which I am passionate. That would be like Myanna (her spouse) getting paid by the government for playing her saxophone.”

Previously, Giles served in the Boston Municipal Court. At the time Governor William Weld appointed Giles in 1991, she also made local LGBT history as the first out lesbian judge to be appointed in Massachusetts.

A relatively new governor, Weld nominated four women at the same time for vacancies to the bench. “I was the first to be sworn in, so the joke is that I was Governor Weld’s first baby,” Giles says.

It is commonly believed Weld appointed Giles in part as a gesture of gratitude to the lesbian and gay community for its support in a very close 1990 gubernatorial race when the community came out in full force and probably voted overwhelming Republican for the first time, favoring Weld over John Silber, who was not viewed as gay friendly.

“Not bad, for a registered Democrat, appointed by two Republican governors,” says Giles. “I say that not to be political, but to underscore what a meritocracy we have in our system insofar as governors get to make meritorious, bipartisan appointments—much to their credit.”

When asked about what makes a good judge, Giles ticks off a few attributes: fairness, compassion, and sympathy, and empathy to offer her thoughts. “We need to appreciate, acknowledge the role empathy plays in justice,” she explains. “I don’t know what it’s like  to be singled out as an obvious minority, but I’d like to think that I have empathy because I understand the pain people feel. And that is not to say my emotions get the better part of me in interpreting the letter of the law. But in interpreting the law, it runs through your heart and your head.”

Sentencing is one context, requiring “a certain amount” of empathy, according to Giles.

“It’s one of the hardest things we do. I’d like to think I am right down the middle. If someone says she is right down the middle, that’s probably the highest compliment you can pay a judge.” Yet, “I don’t profess to be infallible,” she adds. “That’s why we have appellate courts to look over our shoulders.”

The Honorable Barbara A. Lenk

Weld appointed Barbara A. Lenk to the Superior Court in 1993. Two years later, the governor nominated her for the Appeals Court.

She was the first out judge on that bench.

At the time of her first appointment, Lenk was out to friends and family but not more publicly out. That changed, she said, when she and her partner, Debra, adopted children. “You cannot have a private life when you have children, unless you’ve got a secret. And I’m not going to have a secret,” Lenk explains. “The world comes to call on your children. With a two-mom family and a child in day care, everyone knows about the same-sex relationship.

When the world comes to call, you make a decision to have a less private life. It’s one of the best things to happen to me.”

Established in 1972, the Appeals Court almost always convenes as a panel of three justices, hearing appeals from the various trial courts and issuing written opinions. For Lenk, it’s a perfect fit. “I love it—the same issues as a Superior Court judge, but I don’t have 16 people (jurors) waiting for me,” she explains.

“I can spend the time trying to figure out the various considerations—reading, writing, and consulting with colleagues.”

In fact, judges are constrained by the code of judicial conduct from explaining themselves.

Unlike public officials in the legislative and executive branches, who can speak out to address criticism, judges do not hold press conferences. There is no equivalent to the academic defense of a dissertation.

Judges have their final say in writing or from the bench. “Where we explain our thinking is in our writing or what we say in open court,” she says. Therefore, “I want to get it right, as right as we can get it. I want to make sure I understand all the facts, all the legal precedents. How do we get it right? Most judges share that—wanting to say it as well as we can,” mindful that “all of us are mortal and flawed.”

Part of being a good judge, she says, “is having a sense of your own limitations. All of us are imperfect, and life can be hard.”

The Honorable David A. Mills

Acting Governor Jane Swift appointed David A. Mills associate justice of the Appeals Court in 2001.

Upon graduation from law school, Mills could barely imagine being a successful lawyer, let alone applying for a judgeship. “At the time I was so terrified of gay feelings,” he explains.

“Forty years ago, culturally, the concept of being gay terrified many of us: the possibility of humiliation, exclusion, hospitalization, brutalization, and invisibility.”

He adds, “I hid from all of that and never dreamed of being a judge until I was encouraged to apply by Judge Meagher and had confidence that it really could happen.”

Sure enough, during the last four decades, just as society’s attitudes about homosexuality shifted away from sinful, abnormal, and criminal, toward tolerance, acceptance, and  compassion, Mills’ professional self-confidence and self-understanding grew, every step along the road of a distinguished legal career, including 25 years in private practice.

An old-world view of homosexuality and gay people may still prevail in some parts of the country, but so far as Mills can tell, not in Massachusetts. “We are the lucky ones,” he says, attributing the state’s gay-friendliness to the “presence of universities,” a “very sophisticated citizenry of Boston, and I must say, from a citizen’s point of view, how proud I am of the Massachusetts court system. From the judges to the application and adjudication of the law—and I make no reference to any particular case: Wow! Such a wonderful place to live as a human being, where people respect the legal system, with the personalities of those who work to make it effective, and litigants, lawyers, and people who believe in it.”

Professional “collegiality is more than I could ever dream of,” Mills says, recalling a telephone call he got from another appellate court judge, who, trying to finish a case, wanted to talk about it. “We spoke about the case as the judge was trying to get out a proper, correct opinion, working on a Saturday night to do it,” he explains. “That kind of devotion is all over this place. People take their work so seriously and follow the law.”

Also important, Justice Mills says, is a “diverse judiciary with black, Asian, Irish, Portuguese, Yankee, and Jewish” judges, among others, including gay men and lesbians.”

What makes a good judge? “To be experienced in and knowledgeable of the law,” Mills says. Courtesy, too: “Being polite to attorneys in the courtroom, a judge has the opportunity to gift them with gentleness and encouragement, to put people at ease to do a better job, to feel good about themselves, and to have a good experience of the court system as a healthy place where they can make their best arguments.”

The Honorable Maureen H. Monks

Earlier this year, Governor Deval Patrick appointed Maureen H. Monks to the bench.

Serving as an associate justice of the Middlesex Probate and Family Court, she is the newest out judge.

In Probate and Family Court, Monks hears cases about wills, trusts, and disputes over trusts and the administration of estates.

She also hears family law cases dealing with divorce, support, custody, and adoptions, as well as cases concerning the removal of children from unfit parents and the placing of those children in adoptive homes. A probate and family court judge sits without a jury and decides cases based on findings of facts.

Monks comes to the bench with 22 years of experience in private practice of family law.

Over the years of her career, she has seen the law change, paralleling the changes in society.

For lesbians and gay men that means, “having more legal access to the courts,” she says, pointing to equal access to adoption and access to the courts in discrimination cases based on sexual orientation.

“There has been enormous change, she explains, “in terms of parental rights to have children and then for partners through coparent adoption, and then access to dissolve relationships.”

The Supreme Judicial Court’s 2003 Goodridge decision also brought “tremendous change,” according to Monks. “Some gay people felt more comfortable using the courts to resolve disputes. As society changed, it became much easier [for gay people] to be out in their lives and easier to be out in their disputes, and therefore, more comfortable using the traditional means of a court setting.”

Still, “We have not seen the full impact of Goodridge on family dissolutions,” she explains.

“We are just starting to see complex issues revolving children. There are still legal questions about the status of children, particularly for those born to or adopted by only one of the parties prior to a same-sex marriage. If the parties later marry, are their children considered to be children of the marriage or not? The answer to that question has an enormous impact on the rights of those children in reference to the death, disability or divorce of their parents.”

Oddly enough, “Massachusetts lags behind some states that have more detailed laws and statutes on surrogacy and frozen embryos even though all the technologies are right here,” she adds.

What’s it like to be the newest out judge on the bench? “I don’t feel much different than I did some months ago,” she says.

But her life is different in one way. “On Election Day, I went in to vote and left. No door knocking, standing outside with a sign, or phone banking,” she explains. “Yet here I am in this position to make decisions. There are days I feel less overwhelmed.”

From June 6 until the first week of September, Monks heard more than 500 cases. Sure enough, supportive colleagues have been helpful. No one has mentioned the time of “my 3 a.m. e-mails.”

What makes a good judge? “I am finding out,” she replies with a smile, continuing, “experience in the field, and not just the law, but an understanding of the dynamics of what goes on, what resolves cases.” She also says “patience” plus a “sense of humor” can work wonders. “During proceedings, there’s often a moment when a look can put people at ease.”

Gay Judges’ Burden

Ultimately, at the heart of the justice system is an awesome reality: The incredible responsibility entrusted to human beings called judges, who are appointed to rule on very intimate, life-changing issues in another person’s life. Gay and lesbian justices carry that weight no more or less than their straight colleagues.

Still, there is more at stake. Perhaps Giles says it best: “As an out publicly lesbian judge, I have always felt I had the responsibility, my responsibility to be the best judge I could possibly be so that I could serve others as a role model. I hope that I have achieved that.

“I uphold that responsibility. I do the best I can and behave the best way I can to give respect to the appointment, to Governor Weld, and to encourage others to follow in my footsteps. An even greater dividend is changing people’s minds about lesbians, gay men, bisexuals and transgender people. If by people meeting me and respecting me, I can change people’s thinking, it gladdens my heart.”