Reflections of Judge David Mills (Retired)

I was a judge in the Massachusetts Appeals Court. On the 40th anniversary of the court, back in 2012, a book was published containing reflections from each of the 25 justices of the court. These are the reflections that I wrote which were published in the 40th anniversary book.

REFLECTIONS, Mills, J. Rev. 4 11 12

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The 40th Anniversary of the Massachusetts Appeals Court will be celebrated in 2012. Associate Justice Marc Kantrowitz is collecting and editing reflections from the current and retired justices of this court for compilation in a commemorative booklet.

On eleven years as an Associate Justice of the Massachusetts Appeals Court

January 1, 2012

After July, 2001, when Governor Jane Swift nominated me to be the first occupant of the 23 rd seat of this court, I was often asked : "Did you always want to be a judge?" Well, not really.

Indeed, becoming a judge was not among my wildest dreams. For the first fifty years of my life, as a closeted gay man, a principal hope was to keep my sexual orientation (and consequent fear, doubt and insecurity) hidden, while I attempted a promised cure. Surviving despite my shame and internalized self hatred was a constant source of spiritual and emotional fatigue.

British mathematician Alan Turing, an undeniable genius, created a primitive computing device that help decode German naval war codes during World War II, assuring an Allied victory. He was convicted of "gross indecency with a male" in March of 1952, when I was ten. Instead of prison, he was sentenced to chemical castration – - injections of the female hormone estrogen, designed to suppress his homosexuality.

The injections destroyed his athletic frame (he would have run the marathon for Britain in the 1948 London Olympics if it hadn't been for an injury) and turned him into a bloated monster. It also set the diffident genius on a slow, sad descent into grief and madness. As a consequence, on June 7, 1954, when I was twelve years old, and just weeks after Turing's 42 nd birthday, he killed himself by taking a bite out of an apple that he had dipped in cyanide.

* * *

Several historians filed a brief, amici, in the case of Lawrence v. Texas , 539 U.S. 558 (2003) (decided when I was fifty-one) in which the court, on June 26, 2003, struck down all laws that prohibit sex between consenting gay adults. The historians noted that widespread discrimination against a class of people on the basis of their homosexual status developed in the twentieth century, and peaked from the 1930s to the 1960s. Gay men and women were labeled "deviants," "degenerates," and "sex criminals" by medical professionals, government officials, and the mass media. The Federal government banned the employment of homosexuals and insisted that its private contractors ferret out and dismiss their gay employees. Many State governments prohibited gay people from being served in bars and restaurants, and many municipalities launched police campaigns to suppress gay life. The authorities worked together to create or reinforce the belief that gay people were an inferior class to be shunned by other Americans, and homosexuals were penalized as a genuinely subordinate class of citizens.

Such was the cultural paradigm of my parents, my siblings, and me during the first thirty-five years of my life. When I attended college and law school, and when I argued my first case in the United States Supreme Court, homosexuality was still defined as a mental illness, and the faith tradition of my Polish and Irish ancestors labeled me then (and continuing to this day) as "intrinsically disordered."

No. I never wanted to be a judge. Why would I want something so absurd, so beyond imagination.

During my confirmation process in 2001 I was prepared for harsh treatment. Augmenting my somewhat establishment credentials, I had slowly become, somewhat modestly, visible as a gay man. I represented Boston's Mayor Thomas Menino and the city of Boston in Connors v. Boston , 430 Mass. 31 (1999), considered by some to be a predecessor to Goodridge v. Department of Pub. Health , 440 Mass. 309 (2003), often called the "Massachusetts Gay Marriage Case." ("The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens." 440 Mass. at 312.) But instead of being treated negatively, I was unanimously confirmed by the Governor's Council, with no mention of any "gay issue".

Shortly after my nomination, I received telephone calls from other judges – - some I had met, and some I hadn't – - wishing me well, and specifically noting the importance of having "out" gay and lesbian people on the bench. In my Appeals Court experience, my sexuality has been what I call "a non-issue." The ability to be who I am, with collegial acceptance and with no fear of being "uncovered," has enhanced my effort to be a consensus builder on the court, and for that I am very thankful.

I have many rich friendships here.

Upon my arrival, Justice Raya Dreben, now retired, was assigned to be my mentor, and is a great personal friend. She not only accepted and respected me, but affirmed me on a daily basis as a whole person while editing my initial draft opinions, usually reducing by fifty percent their initial bulk – - no matter how strenuously I had attempted to write "briefly".

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My law clerks and I affectionately refer to her process as "Drebenization." Justice Dreben was nominated to the court by Governor Michael Dukakis in 1979 and served for thirty-three years until her retirement in 2011.

Six months after my arrival at the court Judge Dreben and I had a conversation:
She: Hey, do you want to go on a double date?
Me: What?
She: I mean you and your partner.
Me: Partner? Well, I don't have a partner.
She: No partner? I thought all gay men had partners?
Me: Well, I don't. Do all female Jewish associate justices on recall have boyfriends?
She: Well, I do!

Another special collegial memory comes to mind. Goodridge was released on November 18, 2003, twenty-five months after I was qualified for the court. On that day the John Adams Courthouse was still undergoing renovations, and our court offices had relocated to Center Plaza, across Pemberton Square. Early that morning, walking across the square to the courthouse, I met my friend Justice William I. Cowin.

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Justice Cowin was qualified in 2001 and served until mandatory retirement in 2008.

He was grinning and holding a copy of the Goodridge decision, released only moments before. He spoke, "You have nothing to worry about, Mills. You're so ugly no one would ever marry you."

And, my favorite recollection about Justice Susan Beck.

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Sadly, illness forced Justice Beck's retirement on October 31, 2006, and she passed away on March 7, 2009, at the age of 66.

Four years in seniority to me in the year 2002: on a Friday afternoon, in the early winter of my second year at the court, Susan called and asked if she could see me "on a personal matter." I said, of course, "I'll be right up." She said, "No, I'll be right down." She came to my office, and this is what she said:

"David. This is the weekend of the Massachusetts Bar Association annual conference. Margie [Chief Justice Margaret Marshall] will deliver a keynote address at the luncheon on Saturday. However, at the principal dinner tonight, the association will make an award to a State legislator who has been vociferously anti-gay, especially of late. I want to hear Margie speak, but I will not attend that luncheon if it is an embarrassment to you."

And, most fondly, I still deeply miss Associate Justice John H. Mason (64 Mass. App. Ct. 1115) who qualified to this court a few months before me. John a direct descendent of John and Abigail Adams, was the first person to call me on the very day that my nomination was announced. John told me that he was very, very, very, very, very pleased that I would be joining him at the court. Those who knew John love and miss him terribly and can hear him say "very, very, very, very, very . . . ," because that was very, very much John. We became personally close and we shared a love of dogs. I remember our last conversation when I visited him at the Massachusetts General Hospital the day before he died in 2004. In a very weakened condition from his bed at the Philips House, John mentioned three things in his typical fashion of putting the other person at ease: that he had attended with great honor, a few months earlier, the Massachusetts wedding of a former colleague and his same gender spouse; our plan, that would probably not be, to attend a drag show in Provincetown; and how much he liked Provincetown because the place was so welcoming of his dog.

John was a master at making others comfortable and feel beautiful.

​The views expressed are the author's own.  Unedited.  The author owns the copyright.