Calls for Dignity in Confirmation Proceedings for Openly Lesbian State Supreme Court Nominee

The confirmation hearing for an openly lesbian nominee to the Massachusetts Supreme Judicial Court grew so heated and strange on April 27 that even a local conservative-leaning newspaper called for the process to return to a semblance of "dignity."

The seven-hour hearing brought testimony from Lenk's supporters and admirers, reported the Boston Globe on April 28. But the hearing was also marked by extremes of rhetoric and odd tangents into questions on incest and other irrelevant issues that seemed to have come up for no reason other than Lenk's status as an open lesbian.

Lenk's nomination must be confirmed by the Governor's Council, some of whom have already spoken out to criticize Massachusetts Gov. Deval Patrick for having acknowledged to reporters that Lenk, who married her wife after the SJC ruled in 2003 that marriage equality should be extended to same-sex couples, is a lesbian.

Others have leveled criticism at the governor for having nominated so many "firsts" to the bench. Patrick has nominated Roderick Ireland, the state's first African-American Chief Justice, and also Fernande Duffly, the SJC's first Asian-American Associate Justice. One councilor, Republican Charles Cipollini of Fall River, accused the governor of nominating Lenk, who would be the first lesbian justice, simply to placate his base.

"He just picks different groups, and this happens to be their turn," 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.''

But three members of the body 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. "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? Or was yesterday's so fleshy because Lenk is openly gay... ?"

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.

Foes of family parity for gays and lesbians frequently speak of other issues, such as bestiality, pedophilia, and incest, as though they were issues of particular concern with respect to the GLBT community. Councilor Cipollini, who grilled the nominee on physician-assisted suicide and marriage equality, had brought up the issue of polyamory in the context of marriage equality during Duffly's confirmation process, noted SouthCoastToday.com on April 28.

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--where, seven years ago, the first legal same-sex marriages in America were granted.

"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, SouthCoastToday.com reported.

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, the article said. 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."