Massachusetts Supreme Court Gains First Out Lesbian Justice

A Massachusetts body has approved Supreme Judicial Court nominee Barbara Lenk to the bench, giving the state Supreme Court that opened the door to the first legal same-sex marriages in America its first openly lesbian justice.

The confirmation was sealed with a 5-3 vote by the Governor's Council, which only last week heard seven hours of sometimes openly hostile testimony about Lenk.

Some opponents were enraged that the nominee is an open lesbian who was able to marry her life partner in the wake of the 2003 ruling from the SJC. Some hinted that the fact that Lenk's family "benefited" from the ruling cast her nomination into doubt.

Others slammed Massachusetts Governor Deval Patrick for nominating yet another "first" to the bench, having previously nominated Justice Fernande R.V. Duffly (the first Asian-American to sit on the SJC bench) and Roderick L. Ireland (the SJC's first chief justice who is an African American).

"He just picks different groups, and this happens to be their turn," Council member Charles Cipollini said, an April 7 Associated Press article reported. "He's trying to satisfy everyone. He's satisfying the people who voted for him; let's put it that way."

During the course of Lenk's hearing, Cipollini hammered on the question of marriage equality, asking the nominee if she saw the issue as being legally settled in Massachusetts.

"I am tired of attempts by the court to redefine common words," Cipollini said, "especially those that we hold dear, like marriage." The councilor went on to ask, "Will the definition of spaghetti be next?"

"I believe that my decisions, along with the way I have conducted myself as a judge, reflect my commitment to the fair and equal treatment of all people under the law," Lenk told the chamber.

Cipollini used the hearing as an occasion on which to denounce the state's legislature for having prevented a ballot initiative on the rights of gay and lesbian families from going up to a popular vote. He asked Lenk how she would have dealt with the issue.

"I'm a judge, I'm not a legislator. I don't make decisions on public policy," Lenk reminded the chamber. "I make decisions on the cases that come before me."

Three members of the Governor's Council made it clear to individuals offering anti-gay testimony that they had no intention of allowing their decisions to be based on Lenk's sexual orientation, media sources reported.

One individual who offered such commentary to the Governor's Council seemed to so suggest that having an openly lesbian justice on the SJC would imperil children.

"This will be a clarion call to all that want to indoctrinate our children into homosexuality," Carlisle, Mass. resident Sally Naumann declared, according to an April 28 Boston Globe report. "How will we ever be able to say no to our children?"

"No" to what, exactly, was not explained in the Globe article.

Conservative newspaper the Boston Herald urged the council in an April 27 op-ed to "put its increasingly bizarre and often personal petty squabbles aside and conduct a hearing with a distinguished jurist nominated for an important job with the dignity that both deserve." But while the paper's op-ed, published under the title "Returning to dignity," came to seem predictive, its exhortations went unheeded.

"Detractors spoke mostly about sex," noted Boston Herald columnist Margery Eagan in an April 28 essay. "David Funnell of the Commonwealth Covenant Keepers [spoke] of 'bodily pleasures, unbridled sexual license' and the 'militant homosexual subculture elevating their shame to status.' "

But the shameful spectacle of the hearing was the work of Lenk's opposition, Eagan reported.

"At one point, the prose turned so wanton that Councilor Mary-Ellen Manning advised those under 18 to leave," the columnist recollected. "Then Manning delved into whether incest statutes cover homosexual activity."

The columnist marveled at the level discourse, questioning whether "these sessions [are] always XXX-rated?"

The incest question may have related to a case involving two brothers and a sister that had come before the appellate court where Lenk served for a decade and a half. At the time, the law did not define sexual congress between close male relatives as incest. Legislators have since revised the law.

Opponents may have hammered Lenk on controversial issues, but her supporters noted that she was more than qualified for the post.

"Bar Association leaders, former judges, and Lenk's former clerks wrote letters to the Governor's Council, saying Lenk's critics were inappropriately focused on her sexuality and ignoring her legal credentials," the Globe reported in a May 4 article on Lenk's confirmation. "They praised her as a woman of fairness, decency, and uncommon intellect."

In the end, Lenk's credentials convinced a majority of the council. "Lenk has 18 years' experience on the bench, a degree from Harvard Law School, and a doctorate in political philosophy from Yale," the Globe article noted. "Patrick nominated her to replace Justice Judith A. Cowin, who is retiring."

"I thank the members of the Council who concluded, as I did, that Justice Lenk's sharp intellect, vast experience, and deep sense of humanity will make her an outstanding Associate Justice of the Supreme Judicial Court," the governor said in a statement. "The people of the Commonwealth will be well served by having her extraordinary talents and wisdom join our highest court."