Howard Lipsey

The motto of the Rhode Island Supreme court is in Latin which translates as “Not by man but by God and law.” As a devout though shul-going secularist I’m not sure I agree that this is appropriate, but Howard Lipsey is not so offended. In fact on the doorpost of his office in the Garrahy Judicial Complex, there hangs a mezuzah. Howard, we have to talk, I said, and so began a series of conversations on how being Jewish affects his thinking on the bench, presiding over disputed divorce cases in family court.

My theory is that since the motto is behind the heads of the justices, they don’t see it. Howard reminds that it’s in Latin so no one understands it anyway. We agree that the 10 Commandments in the Alabama courtroom were over the line, and then choose to disagree on the Rhode Island court’s motto or his putting the mezuzah on his office doors.

Does your being Jewish ever interfere with your judicial thought process? I asked. He gave me a copy of his decision in a disputed custody case. The father, a good man who had moved to Ohio wanted custody of his son. The mother, who had subsequently remarried, wanted to keep him here. Oh, the mother’s new husband hung Nazi flags in the house and participated in WWII re-enactment battles where the Nazis always won. Apparently the mother saw no harm in this. So, how to decide? The Jew in the judge wanted to get the kid out of there, but the case law dictated otherwise. He awarded custody to the mother. (I picture him holding his nose as he rendered this verdict, though I’m sure he would deny that that was the case.)

So you are a strict letter of the law guy? No, he said. One can’t live by sechel (intellect) alone. Fairness is the Jewish element that comes into his decision making. When I asked him if putting fairness before the black letter of the law isn’t what got Judge Sotomayor in trouble with Republicans in the Senate, he said “no.” When the law is clear, it’s clear, but when it’s ambiguous there is room for latitude. We are all products of our upbringing and experiences, but we can’t allow that to substitute for law. But on the Supreme Court principles of justice are allowed to penetrate. He cites cases like Brown v. Topeka which declared school segregation unconstitutional despite precedents to the contrary.

We studied some of the 613 mitzvot as catalogued by Maimonides dealing with how the law should operate. With some he was in obvious agreement as are all regardless of religion—“A judge must not pervert justice” and “judge righteously,” and “Judges must not accept bribes.” But one injunction reminded him of a case he regarded as his most significant success—though it didn’t start out that way. Maimonides warns against using circumstantial evidence. Howard once did. The case concerned an infant with bones broken symmetrically on both sides of her body. The people at Hasboro Hospital reported the circumstance to DCYF who wanted to take the child from her parents. The circumstantial evidence was that the girl had these multiple fractures and that only the parents were ever with her. The parents claimed that there was a medical reason for what had happened to their daughter and had an expert testify to that effect. Other physicians said this was not the case. As a judge Howard found for the DCYF and placed the little girl with her paternal grandparents allowing only supervised visits from the parents. That’s the way the issue stood until another physician using medical tests not available at the time of the first trial demonstrated that the little girl’s condition was indeed medically induced. With this new testimony Howard, in effect, overruled himself and ordered the child to be returned to her parents. DCYF appealed to the state supreme court and lost. For the past 10 years the re-united family sends Howard a Christmas card with photos showing the girl’s progress. A success based on recognizing that circumstantial evidence, as Maimonides had pointed out 900 years before, ought to be used with caution if at all.

---

This is the first in a series of occasional columns I’m planning on how Jews (and in one case a former Jew) in unique positions in Rhode Island discuss how their being Jewish impacts on what they do, how they think in their professional capacity. Each is or will be asked a variation on the question “If there is such a thing as a Jewish soul, how do you think yours affects your perceptions—or does your career and current status work to dampen Jewish instincts?”