The court does not have to decide the theological question of who is Jewish, only what the testator meant. Suppose the testator wrote "who is Jewish according to the Chicago Rabbinical Council" (or whatever rabbinic body he felt like.) Then the court would have no Establishment Clause question--the testator would be deciding the theological question.


The decision raises many questions. Suppose the will had disinherited a descendant who was "married in any ceremony not performed by Rabbi So-and-So" where the testator knows that So-and-So won't perform intermarriages. Would that be against Illinois public policy?

Prof. Volokh- You raise the issue of "who is a Jew" as one that was not raised here, but easily could have been. If the deceased had specifically listed a group to determine whether or not the person his grandchildren married are Jewish (say, Beit Din of America) or even a specific person, would that get around the objection? (i.e., "if they have married someone not of the Jewish faith as defined by Rabbi xxxxxx.") Of course, in this case, Rabbi xxxxxx would have to be someone whose opinion can be sought out with some relative ease, since if he's dead or unreachable then it's asking the court to decide what the rabbi would have thought religiously.

Courts don't seem to mind making decisions about who is actually Jewish when they absolutely have to (such as in denomination splits). If they can do it in that context, I don't see why they can't do it here.

Actually, the dissent discusses the "who is Jewish" question briefly:

"The concurring opinion further suggests there are difficulties which face courts in attempting to enforce certain partial restraints. Indeed there are. For example, in matters where there is a question as to whether the beneficiary has 'been brought up and educated in the Roman Catholic religion or whether he attended Catholic Sunday school and attended mass at various Roman Catholic churches with "reasonable regularity" for years,' the court would be required to inquire as to whether the legatee heir performed various religious rites. However, that is not the case here where there is no suggestion that the spouses of the grandchildren are Jewish."

This case gives new meaning to the phrase "you're dead to me".

Suppose you are right, and a civil court would be prohibited from deciding whether someone is really Jewish. Now suppose also that the testator's religious beliefs prevented him from leaving any property to someone of a different faith.

Then the testator can check whether beneficiary X is, to his satisfaction, Jewish (or whatever) and write him in or out of the will as he pleases. If person X does something to offend our testator, he can be written out. If the testator is concerned about not being able to judge late in his life, he can find a reputable attorney and grant him power of attorney to do this.

I don't see why the will has to name any faiths or standards of faith at all. Wills ought to name people not religions!

From the dissent:

Although the Liberman case invalidated a provision requiring the beneficiary to marry only with the consent of his mother, brother or sister, the court did so not because the provision was intended to restrain the beneficiary from marrying anyone other than a Jewess but, rather, because it found the consent feature invalid.

A side note, but when is the last time you heard a judge refer to someone as a "Jewess"?

Professor Volokh, you say if the testamentor(?) had not left open the question of what constituted marrying outside the Jewish faith, the Establishment Clause problem would have been avoided. What problem(s), if any, might there be if the testamentor had designated an arbiter to decide whether the terms of the will had been satisfied or not rather than looking to the courts to interpret/decide?

If the law is sufficiently settled, or will be after this case and perhaps others, then might it be legal malpractice for an attorney to draft a will that was "defective" in this way, allowing the testamentor's intentions to be frustrated? Who, if anyone, would have standing to bring a suit for legal malpractice, the executor or others who would have benefitted had it been properly done? Do wills and estates lawyers ever get sued for negligence in drafting wills, or do they bury their mistakes at the same time the decedent is buried?

My late father, a surgeon, always used to emphasize how important it was to pick one's lawyers and accountants carefully, observing cynically as was his wont that doctors bury their worst mistakes, but people may have to live with the worst mistakes of lawyers and accountants. Any legal recourse against a negligent wills and estates lawyer?

Running Deer and Sitting Shiva: I don't know how old that Running Deer and Sitting Shiva joke is. Like many jokes, its vintage and provenance is probably hopelessly indeterminate. It does remind me, though, of a memorable encounter between the late Timothy Leary and a very colorful MIT professor, Jerry Letvin more than 40 years ago.

Leary was doing his thing, promoting the use of hallucinogens, in what amounted to performance art though that term was not employed back then, before a large MIT audience there to hear the former Harvard assistant prof, now LSD guru. On the stage with him, was Letvin, a psychiatrist and accomplished neurophsyiologist, for what was supposed to be some kind of "debate." Leary's thing involved a funky 60's type slide show, music, lights, etc. to set something of a psychodelic mood, with him clothed in Indian style white pajamas (dhoti?) and sitting all the while. When Letvin's turn came in this very informal exchange, he circled around Leary seated on a rug center stage. After looking at Leary for a moment, Letvin drew a big laugh from the crowd when he told the counterculture figure he didn't so much look like the Indian sitting Shiva god, as a Jew sitting shiva.

(OK, you had to be there. And some day you too will be old and take what opportunities come along to reminisce about your youth and times gone by.)

Wills ought to name people not religions

Sure, but people writing wills have every right to decide who they are going to give their estates to, using whatever methodology they choose, no matter how rational or irrational--mainly because it's THEIR property to give away however THEY want.

From a libertarian perspective, even the public policy exceptions ("C only takes if he divorces W") should not be allowed. If C wants the money bad enough, he can divorce W--but he gets to make his own choice in that regard. Which is more important, the money or his wife?

I agree that the Courts should not be in the business of deciding who is a Jew (or a Catholic or a Muslim--or an atheist for that matter). However, that seems like a problem in draftsmanship--qualifying it as "a Jew as defined by the Chicago Rabbinical Society or its successor in interest" removes that problem.

My great-grandfather had intended to put a similar provision in his will (he was later talked out of it), although I don't know that his grandchildren who intermarried would've been deemed to be deceased. May I ask why they had to go to that extent?

There are a gazillion bequests to Jewish Federations around the country to aid "needy Jews" and the like. Is Eugene saying the courts are powerless to enforce such provisions?

There is somewhat of a parallel for American courts addressing the question of "Who is a Jew." A number of state have "Kosher statutes," which IMHO seem to be state meddling in the definition of what is kosher (see here for one take on them). Just recently, those in New York were challenged once again (here). In Israel there was the famous case of Brother Daniel, a Jew who converted to Catholicism, yet wanted to be awarded Israeli citizenship under the Law of Return.

Lastly, my knowledge of Jewish law is much more than American law, and I know of no source or custom for mourning over someone who has intermarried as if they have died. It is the equivalent of a "shtetel/urban myth." There are legal discussions regarding a number of issues, such as inheritance and what happens if they want to return to the Jewish community, but nothing AFAIK about mourning.

One thing that interests me is how PRESBYTERIAN CHURCH v. HULL CHURCH, or Michael McConnell's recent 10th Circuit case has its grounding in originalism. I'm speaking of the notion that governments by right have no business "defining" "Christianity" or any other religious creed.

This is important to me because I've invested a lot in investigating and consequently debunking the "Christian Nation" claim as put forth by some on the religious right. The notion is if "Christianity" has some kind of special organic connection to American civil governments -- indeed something that necessitates government supporting and preferring "Christianity" over "non-Christianity," it first has to "define" Christianity. But if government can't "define" Christianity, then it can't support (or grant rights or preferences) to "Christianity" over other religions. Consequently government grants rights to "religion in general" but not "Christianity."

Jefferson and Madison believed more or less in strict separation or that "Christianity" had no organic connection to civil governments. I've found a great "memo" of Madison's where he notes government has no right defining Christianity because it puts government in the business of deciding "orthodoxy" v. "heresy." Adams and Washington argued for a more accommodationist position where government would support religion; but even they seemed to agree that all religions should have equal rights. Joseph Story and John Marshall famously advocated Christianity receiving support from the state and having some kind of organic connection to civil government. But here's the rub: Jefferson, J. Adams, Story and Marshall were all identifiably "Unitarian." Madison and Washington may have been; but there is less evidence.

Story et al. were insistent that "Unitarianism" was real Christianity. And as such any key historic testimony they offer must also support the notion that "Unitarianism" is part of the "Christianity" in which civil governments should support. But the orthodox then and even today don't regard this as "real Christianity" and would probably view government identification and support of this "false Christianity" as a "poison pill." Indeed, this was the context behind the famous Dedham case in Mass. that ended their state establishment in 1833 -- the last one in the nation.

In short, once you let the Unitarians into the understanding of "Christianity" (in many ways what America's Founding was all about, given the disproportionate number of Founders who were theological unitarians) you've pretty much let the barn door open and "Christianity" transmogrifies into "religion" or "morality" in general. [The Unitarians were so "works" focused that they often noted all good people, whatever their professing creed, were "Christians."]

A friend of mine, a prominent California lawyer (and a UU) sent me the following note with some interesting case citations:

If Mormons consider themselves followers of Jesus, that’s good enough for me to regard them as Christians. If Trinitarian Evangelicals regard themselves as followers of Jesus, I’ll consider them Christians too — even though, so far as I can tell, Jesus never claimed to be God.

If someone like John Adams and Thomas Jefferson and the Rev. Dr. Joseph Priestley honored Jesus and endeavored to follow his teachings, they should not be denied the name “Christian” merely because others who claim that name have embraced any number of extra-biblical doctrines.

I’ve heard Catholics occasionally say that theirs is the only “true church,” suggesting perhaps that Protestants are not truly Christians. I’ve heard Protestant preachers denounce the Pope as the Anti-Christ, insisting that Catholics can’t be true Christians because they follow the Pope rather than Christ.

I must confess, such attitudes offend my sensibilities.

[...]

I am reminded, quite frankly, of how New Hampshire’s Supreme Court ruled in 1868 the Dover, New Hampshire, First Unitarian Society of Christians’ chosen minister — the Rev. Francis Ellingwood Abbot — was insufficiently “Christian” to serve the Congregation that had called him. Justice Jonathan Everett Sargent’s opinion for the court quoted passages from Abbot’s sermons, to show that the minister was too open-minded to serve his congregation.

The Rev. Abbot, after all, had once preached:

“Whoever has been so fired in his own spirit by the overwhelming thought of the Divine Being as to kindle the flames in the hearts of his fellow men, whether Confucius, or Zoroaster, or Moses, or Jesus, or Mohammed, has proved himself to be a prophet of the living God; and thus every great historic religion dates from a genuine inspiration by the Eternal Spirit.”

In another sermon, Rev. Abbot even declared:

“America is every whit as sacred as Judea. God is as near to you and to me, as ever he was to Moses, to Jesus, or to Paul. Wherever a human soul is born into the love of truth and high virtue, there is the ‘Holy Land.’ Wherever a human soul has uttered its sincere and brave faith in the Divine, and thus bequeathed to us the legacy of inspired words, there is the ‘Holy Bible.’”

“If Protestantism would include Mr. Abbot in this case,” Justice Sargent opined for New Hampshire’s highest court, “it would of course include Thomas Jefferson, and by the same rule also Thomas Paine, whom Gov. Plumer of New Hampshire called ‘that outrageous blasphemer,’ that ‘infamous blasphemer,’ ‘that miscreant Paine,’ whose ‘Age of Reason’ Plumer had read ‘with unqualified disapprobation of its tone and temper, its course vulgarity, and its unfair appeals to the passions and prejudices of his readers.’”

Hale v. Everett, 53 N.H. 9, 16 Am. Rep. 82, 1868 N.H. LEXIS 47 (1868). See Charles B. Kinney, Jr., Church &State: The Struggle for Separation in New Hampshire, 1630-1900 113 (New York: Teachers College, Columbia Univ., 1955) (“One of the more celebrated cases in New Hampshire jurisprudence is that of Hale versus Everett.”); Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 B.Y.U. L. Rev. 1385, 1534 n.541 (“As late as 1868, the state supreme court decided that a Unitarian minister would not be allowed to use the town meeting house because of his heterodoxy, and in spite of being called and settled by a majority of the community.”).

You might suppose that being run out of the pulpit would sour the Rev. Abbot in his attitudes toward those who thought themselves more orthodox than he was. You would be wrong. Abbot went on to edit The Index, and on his retirement from that position in 1880 addressed those who gathered in his honor: “I know we are here Unitarians and Non-Unitarians, and I rejoice to stand with Christians, with Catholic and Protestant Christians alike, for justice and purity; and I will always do so. These things are more important than our little differences of theological opinion.” Farewell Dinner to Francis Ellingwood Abbot, on Retiring from the Editorship of “The Index” 14 (Boston: George H. Ellis, 1880) (remarks of Rev. Abbot, June 24, 1880).

It may be noted that Frederick Douglass praised Rev. Abbot for doing “much to break the fetters of religious superstition, for which he is entitled to gratitude.” Farewell Dinner, supra, at p. 48 (letter of June 15, 1880, from Frederick Douglass to the Rev. M.J. Savage).

For the rest see here. But hopefully you'll see some of the context behind the problems inherent in getting government to "define" Christianity in the first place which they would have to do in order for "Christianity" to have special rights under the US civil law.

I know there are very few people who presently argue for policy. But I've found quite a number of folks who do argue that this -- a "Christian Nation" -- was what America's Founders intended.

Was the case of Girard College somewhat or not at all apposite? In that case, the Supreme Court knocked out the provision in a will that directed money go only to educate "poor, white orphan boys"? So race, not religion was the issue there, hence no Establishment Clause problem, rather a XIV Amendment one after Brown v Board of Education. And though a private institution, Girard's will specified certain government officeholders were to serve as school trustees. If a will or trust provision offends a court's sensibilities, that is the court's notion of what is right and wrong even if not clearly illegal, is it going to be gutted on one basis or another?

Suppose someone wanted their money to go for the education of "poor Jewish boys" only. Could the will be successfully challenged on some basis, e.g., a civil court couldn't be put in the position of deciding whether a male born of the union of a Jewish man and a Gentile woman qualified as a beneficiary. (The Reform movement regards such a child as a Jew, the Orthodox don't.) Might state law make such gender discrimination impermissible so the benefits would have to go to girls too, or would it be constitutionally impermissible for the state or federal government to interfere in such religious matters? (In Shelley v Kraemer the court was called upon to take action, enforcing the restrictive covenant, which it wouldn't do. But in my hypothetic, it wouldn't be a matter of the court taking any action, rather it would be about the court declining to intervene, thus respecting, or not disrespecting(?), the grantor's wishes.)

Given that Israel has established rabbinical courts, one could always consider it a matter of international law. Then again, the Israeli rabbinate has sometimes come pretty close to declaring all of America not to be Jewish -- they don't think American Orthodox rabbis are really sufficiently Orthodox and have been increasingly refusing to recognize their conversions. See e.g. here. There was a famous case where the rabbinate threw out the conversion of person adopted as an infant and raised in an Orthodox day school and declared him not Jewish just before his wedding because the rabbinate simply refused to believe that anyone in New Orleans could lead a Jewish life ("Is it possible to get kosher food in New Orleans?"). Recemtly a new rabbinate, in the course of throwing out a conversion authorized by an Israeli conversion court because the woman was not living a sufficiently Orthodox life, criticized the predecessor court's procedures in a way that suggested all its conversions, tens of thousands, might be considered invalid. See here, here

In addition, the Israeli rabbinate has been increasingly skeptical of Americans who claim to have been born Jewish. The rabbinate has reached a point in the last decade where it basically will not accept the testimony of anyone who isn't Orthodox, and this means that increasingly Americans who don't have a connection to an Orthodox rabbi who knows their parents and grandparents have no way of proving that they are Jewish. Americans are used to thinking of being American as something reflecting status and respect. Here the tables have turned; being American makes one religiously suspect. All that pluraism and exposure to foreign ideas. See This New York Times article

John: Soronel Haetir has it right -- you can surely leave your money to some named organization, whose practices you know and like. But if someone later challenges the Jewish Federation's behavior, claiming that it's not helping real Jews because the recipients didn't convert properly or were only half-Jewish on the wrong side or were Jews for Jesus or some such, I don't think civil courts could intervene.

The question, as David Bernstein's comment suggests, is whether despite this courts could intercede if the Jewish Federation were using the money to help people who clearly weren't Jews, and no-one was making any claim that they were Jews -- whether the "no religious decisions" principle applies only when there's some theological controversy, however minor, about the decision. I'm inclined to think that courts just categorically can't decide who's Jewish, Catholic, Christian, or whatever else; but David, who also knows First Amendment law quite well, disagrees.

Pitman: I agree that the kosher enforcement laws raise precisely this problem, and some courts have struck them down on these grounds (though as I recall there's a split of authority on this).

Actually, the idea of Jewish Federations is also questionable. Certainly the Jewish Federations I am familiar with fund programs that are not necessarily aimed only at Jews. (Such as funding the Community Centre, where the gym is used by the entire neighbourhood. Or the local Mount Sinai hospital, where everyone is welcome as a patient. Or funding disaster-relief work in Thailand a couple of years back.) I wonder if anyone could actually legally enforce a bequest to help only Jews via a Jewish Federation?

Just update your will a couple times a year, naming people you want and not naming the rest.

Don't specify why, or give controversial tests. YOU work out the tests, and then YOU put it into your will.

It would be, presumably, unenforceable to make a will that says "any relatives who have no black blood and don't marry a black person split all the money." But as I understand it it would be perfectly enforceable to draw up a list, based on who is black and who is white, and make that your will.

Or will we see the day where a will is invalidated because a judge finds that color bias motivated the dead guy?

Daryl - But then they can't control what the beneficiaries do after the testator's death, which is the real point. I happen to disagree with the court's decision in this case, but think conditional bequests of this type are unwise and mean-spirited. The problem with trying to continue to control your descendants' life choices for decades after your death is that you never have a chance to change your mind and reconcile. Say granddaughter marries a non-Jew who refuses to convert. IF it happens while grandpa's alive, he will likely be angry. Life goes on. New husband turns out to be a great guy and agrees to raise the great-grandchildren Jewish. Grandpa gets over it. If grandpa is dead, on the other hand, granddaughter is not just disinherited, but she and all her (Jewish) children are treated like they are dead. Instead of remembering dear old grandad as a crotchety, but loving, man, she remembers him with bitterness and anger as a jerk who used his money to control his descendants' lives decades after his death.

And all so dead grandpa can have the satisfaction of punishing offenses committed after he dies. Should such behavior be legal? Almost always. Is it right? Almost never.

If the will delegates the decision to the Chicago Board of Rabbis, doesn't that put the court in the position of making a determination of who is the Chicago Board of Rabbis? You've got to start with some set of axioms.

Courts make factual determinations all the time; there's no problem there. The only problem comes when their factual determinations require them to make theological ones first. The CBR is a legal entity, not a religious one, so determining who it is doesn't require any religious decisions.

AnneS: Or vice versa (someone makes a gift while alive, or a bequest, and circumstances change such that if he knew then what he knows now, he wouldn't have made the gift. The moving finger having writ...)

Sometimes you can't win: Imagine two would-be inheritors (children, grandchildren, whatever): one has behaved as the decedent wished, the other didn't (whether that has to do with behavior towards the decedent, or with regard to religion, or choice of spouse, etc.) If the decedent leaves it all to the good child, the bad child may remember him bitterly; if he splits it equally, the good child will resent that his better behavior wasn't recognized.

Oh, I know, David. But I think there is a qualitative difference in basing a inter vivos gift or unconditional bequest on events that occured during the testator's life and placing a condition on a bequest that can cause it to fail based on a life choice the beneficiary makes after the testator dies. In the first instance, there is a back and forth that can play itself out while the principals are alive. It's easy to make a pronouncement about what you want your children or grandchildren to do with their lives (faith, marriage, sexuality, whatever) and declare that you don't want anything to do with them if they ever act contrary to your wishes. BUt there are shades of gray that inevitably accompany such choices/lifestyles, as well as the reality of alienation from a child/grandchild that has to be dealt with inter vivos. Enshrining your (untested) wishes to be imposed on choices your descendants make long after your death, regardless of context, can lead to results that the testator very likely wouldn't have been able to live with. Moreover, the descendant is left with anger and hurt that she has no opportunity to voice to her parent or grandparent. It's one thing to make your case to your parent and lose (or pass up opportunities to stop being the bad kid) - it's another to be deprived of the chance to resolve the matter with your parents and I think it engenders more bitterness than an honest inter vivos figh fight or estrangement.

It sounds like the dissent thinks Shelley was really about enforcing the rule against perpetuities, and not about preventing the courts from becoming involved in enforcing racially restrictive covenants.

I could never keep straight the rule against perpetuities and the Rule in Shelley's Case.

If the will delegates the decision to the Chicago Board of Rabbis, doesn't that put the court in the position of making a determination of who is the Chicago Board of Rabbis? You've got to start with some set of axioms.

The purpose of having religious organizations use corporate charters is to avoid these sorts of problems. Then it's clear as a matter of corporate law, the only issue is finding a form of corporate organization that's a reasonable enough fit with the religion's internal organization structure not to cause problems. Have an episcopaliate? Make the bishop the only director. Have a board of rabbis? Make the board of directors...rabbis.

It sounds like people are suggesting two different solutions: 1) That the testator appoint an arbitrator to make the detemination; or 2) that the testator reference the standards of a religious council to determine if the person is a Jew.

I am not sure there is a problem with a third party arbitrator but any povision that asks an executor or trustee, and if litigated, a court, to apply a religious test is asking for trouble and a failed will.

The judge that thought it was okay for courts to enforce a ban on non-jews:

Appellate Judge
Alan J. Greiman
First District, 3rd Division

Alan J. Greiman was born in Chicago in 1931 and was educated at the University of Illinois, from which he received his undergraduate and law degrees. He was admitted to the Illinois Bar in 1955 and practiced law until his appointment to the bench. He served in the Illinois General Assembly from 1974 to 1987 and served as chair of the House Democratic Conference and as Assistant Majority Leader. He was appointed to the Circuit Court of Cook County in 1987 and elected in 1988. After serving in the Law Jury and Law Motion Divisions of the Circuit Court, he was appointed to the Appellate Court in 1991. He is married to Julie E. Hamos and has raised six daughters.

and a very interesting interview with him:

Justice Alan Greiman has spent 16 years changing the culture of the Appellate Court, and feels that has been his greatest accomplishment on the bench.
Greiman, a Chicago native, is chief judge of the Appellate Court, a title he has held for the past 11 years. He is up for re-election for the Burke vacancy. Greiman has been a judge since 1987, and has served on the Appellate Court since 1991.

He also served in the Illinois General Assembly as a representative from 1974 to 1987, where he was Assistant Majority Leader. There, he co-sponsored the first gay rights bill, which would not be passed until 29 years later.

Windy City Times: What do you believe you have been bringing to the bench, and can continue bring, that your opponents can't?

Alan Greiman: I've spent the last 11 years of my 16 years on this bench as a chief judge. During that time, I changed the culture of the court. When I came here, it was, “When are you going to get your decision out? Oh, whenever.” I said, no, that can't be. We have to have it in a timely way. We now conform with all of the rules that the organizations that monitor us accept. For example, when I came in, the average inventory was 40 cases, and now its 22 cases.

The next thing I did is when judges come here, nobody knows anything about the appellate court. They just don't. So, I set up an education program for new judges, a training program for new judges.


Read more story below....
The next thing I did—I had to battle the Supreme Court, but I got to do it—is set up a settlement program to try to save people the litigation costs to settle the cases before they get too far along in the appeal. In the Circuit Court, when you try a case, there are discoveries, depositions, all of that junk. The lawyers see each other all the time and talk to each other, so eventually say, “Hey, let's settle this.” In the appellate court, nobody ever sees each other, and it's all done by mail and filing, which is why I set up the settlement program.

Those are strong changes in the culture of this court that I have brought about. I'm not knocking my opponents—they are probably decent people—but that's what I've done, what has been my contribution.

I've done a lot in the court in terms of providing leadership, which I'd like to continue to do.

WCT: What are some other ways the culture of the court needs to continue to change that you'd like to work on?

AG: Well, we do a pretty good job now. We dispose of 5,000 cases a year. About 3,800 or so are by opinion, and we're doing them in a quick way. One thing I'd like to work on is we used to do a lot of oral arguments. Over the years, for reasons that I can't even figure out, we stopped having a lot of oral arguments. … As an example, in 2006 we had about 200 oral arguments and now we've had about 600 oral arguments. I've been pushing for more and more oral arguments. That's important because people have a good feeling about that when they do it. It doesn't necessarily make a big difference, but they are able to express themselves in a legal way.

WCT: What do you think you're biggest accomplishment has been so far? Has it been changing the culture of the court?

AG: Yes, I think so. I've had some serious, important cases, as well that I've ruled on. But changing the culture of the court is my greatest achievement here.

WCT: How would you describe your personal style?

AG: I always believe in the right that everybody should talk and be able to express themselves. … It's a matter of getting stuff out and listening. Also, I ask a lot of questions. That screws them up a little bit, but that sort of thing is critical to continue. Also, to have a demeanor where you are training each other about respect—that's very important. But the other thing, of course, is getting along with your colleagues. … We have three of us for every case. Every single cases has three of us [ judges ] , so it's getting along with your colleagues in a congenial way in order to get the work done in a proper way. And obviously, they've re-elected me 11 times, so I think I'm doing okay.

WCT: You've seen a lot over the years. What do you think are some legal issues that continue to impact the gay and lesbian community the most?

AG: Clearly, civil unions are, at this moment, the most critical. I have no problems with marriage, either, except I think the lobbyists of the gay community should probably work on civil unions because they could probably get that in. The other one [ marriage ] is harder to get in the legislature. I think civil unions are doable and will basically do the work for couples that want to have all the rights of married people. I think that's the most critical issue facing the gay and lesbian community.

Clearly, there are prejudices that still exist. There was a case we had where a man and woman got divorced, and she had custody of the child and she's living with another woman. The father wanted custody of the child because of that, and the most homophobic judge and person I've ever come across … was crazed, and he took the kid away. It comes to us on appeal, and we're hearing the case. Normally, when we hear a case, we say that the case we take is under advisement. You know, months later, maybe four months later an opinion comes out of it. I said, guys, what a second. We went back, made the lawyers stay, and I said to my guys, what we should do here is give an order that custody has changed immediately, and then we'll have opinion to follow. And we did that, right there, 1-2-3, in the appellate court. It was the first and only time we had an oral argument and immediately entered an order to give custody back to the mother.

I was in the General Assembly for 14 years, and I was the principal sponsor of the first gay-rights bill. When we filed it, we got through committee and now we were on the floor of the House, and the guys are saying, “You have a conflict of interest in this bill, don't you?” That's what they said. It took 29 years to pass the bill, and I went to the signing of it last year.

WCT: I bet it was amazing to see.

AG: Well, what was amazing was there were some of the guys who would make fun of us, who were there now at the signing, going on about how this is God's work, and we're doing the right thing. Where were those guys when they made fun of us? I think that tells a story about how much of the views of people about the gay and lesbian community has changed. You have the vice president of the United States saying his daughter is gay, you know? Alderman [ Dick ] Mell stands by his daughter, who is gay. She's not ostracized; her family stands by her. That's now the way it is. I think there is more inner familial acceptance, as well as acceptance by society. We still have plenty of homophobia, though. … But the culture has changed to a good degree.

I'm proud to have been one of the sponsors of the original gay rights bill.

WCT: Speaking of being a state representative, why did you decide to leave, and did you like it more than being a judge?

AG: I liked what I was doing, which was majority leader of the Illinois House. I was Madigan's hammer [ laughs ] , sort of. I had done a lot of good stuff, pass a lot of bills, and. here was the opportunity to become a judge. Sometimes you want to change your life a little bit, so that's what I did. I still enjoy hearing about it. I'm chairman of the Legislation Committee of the Supreme Court, so I get involved a little bit with legislation now. What we do is look at all the legislation that is pending to see what bills may violate the separation of powers. So, I'm still involved a little bit. But it was just time to move on.

WCT: Do you think judges still have the ability to change things and change people's lives, just in a different kind of way?

AG: Yes, they, of course, change people lives, but the critical thing is that they follow the law. I'll tell you the story of a case that has plagued me mentally for a long time. People will ask me what has been my best case? My best case is my worst case. It was a 17-year-old kid, a Black, inner-city kid. He played on the basketball team, wants to go to college, survived a druggy mother. He's a good kid, okay? He's walking to school and some guy says, “Hey, want to buy a firecracker?” It's a big one. He says okay and buys it. He and some other kids light it and put it in a locker in school. Bang, it goes off. It pulled the locker a little bit away from the wall, … put a mark on the wall, a little twist of metal—that's it. They charge him with aggravated arson. Aggravated arson has a mandatory sentence of seven years, and they find him guilty of it and convict him.

Now, the case comes to me on appeal. Did he do that? Is he technically guilty of aggravated arson? He exploded a material in a building where people were occupying. On the other hand, we have to do justice. I wrote the worst opinion of my life about whether he had intent, and he went free. I reversed it. That story is how bad mandatory sentencing without a judge's discretion is. If a judge had had discretion, a judge could say,”He's guilty, but let's put him on probation.” And the other thing that was in my mind was that if he lived in … Flossmoor or Oak Brook, Daddy would have come in the next day with a lawyer, written a check for $500 to fix the locker and the kid would have been put on probation for a month. I look at it this way: Maybe I didn't quite follow the law, but I did justice, and that's important.

WCT: What do you think your main advantage is?

AG: Just that legal experience counts. I have the experience, I know what I'm doing and I've done the job for 16 years—11 of those years as chief—and I'd like to continue both of those jobs.