Judge Mary Johnson Lowe, Unsung Trailblazer

As we commemorate the 40th anniversary of the Coalition for the Homeless and the right to shelter, it is important to recognize some of the individuals who have been part of the Coalition’s history. Judge Mary Johnson Lowe, the first Black woman to serve on New York’s Supreme Court and only the second Black woman to serve on the Federal bench, is one exceptional figure whose legacy includes a landmark ruling upholding homeless New Yorkers’ voting rights. With her 1978 Federal appointment, Judge Lowe followed in the footsteps of former NYS Senator and Manhattan Borough President Constance Baker Motley, who had been appointed to the United States District Court for the Southern District of New York (SDNY) in 1966. Prior to her appointment to the New York Supreme Court in 1973 and her 1977 election to a subsequent 14-year term, Judge Lowe worked in private practice, primarily as a criminal defense attorney, for 16 years before her 1971 appointment to the New York City Criminal Court.

President Jimmy Carter appointed Judge Lowe to the SDNY after Senator Daniel Patrick Moynihan recommended her for a seat in 1978. Upon receiving her commission, she was one of only five women and 15 fifteen Black judges serving among 400 Federal trial court judges. She authored many important decisions over two decades, including the seminal voting rights case involving homeless people, Pitts v. Black. She was also nominated to the NYS Court of Appeals in 1979 by Gov. Hugh L. Carey, lectured at Harvard Law School, and was honored by the NYS Bar Association in 1978 for her ”outstanding judicial contribution to the criminal justice system.” Judge Lowe eventually scaled back her workload – splitting her time between New York City and Las Vegas – and served as senior judge between 1991 and 1999, when she passed away at the age of 74. Sonya Sotomayor offered a eulogy memorializing Judge Lowe at a Riverside Church service in New York.

A Civic-Minded Member of the Community

Born in 1924 in Manhattan, Judge Lowe grew up in the Bronx. She earned a Bachelor of Arts degree at Hunter College of the City University of New York in 1951, an undergraduate law degree with honors from Brooklyn Law School in 1954, and a Master of Laws degree the following year at Columbia University. She also served as class president and the first Black law review editor-in-chief at Brooklyn Law School. Her two daughters followed her into the practice of law, and her son became a physician.

Judge Lowe was a civic-minded member of the community and was a founding member of the Judicial Friends Association, established in 1976 to support New York’s Black judges, judicial staff, and attorneys. The association is an instrumental provider of judicial internships, mentors law students, offers educational scholarships, and remains an authoritative voice challenging systemic racism in the courts through the leadership of current association president Hon. Erika M. Edwards, a Manhattan Supreme Court Justice.

Judge Lowe was also a founding member of the American Bar Association’s National Judicial Council and served as president of the Bronx chapter of the N.A.A.C.P. She was a member of numerous civic organizations, including most notably, the National Organization for Women, National Urban League, and The National Council of Negro Women, which was founded in 1935 in Harlem and became the first entity granted non-governmental organization (NGO) status by the United Nations.

Remembered during Black History Month in 2021 as having “forged paths for women, Black Americans, and Black women in the law” by her alma mater Columbia Law School, the judge’s former clerks also remember her fondly. The chair of the Coalition for the Homeless Board of Directors, Barry Berke, wrote: “Judge Mary Johnson Lowe was a special person and judge, who had the courage of her convictions. At a time when there is a call for more judges who understand the people impacted by their decisions, MJL was a one of a kind trailblazer.”

Darren Lenard Hutchinson, John Lewis Chair for Civil Rights and Social Justice at Emory University School of Law said, “Judge Mary Johnson Lowe was a tenacious and sharp individual. She devoted her life to social justice. I am honored that she chose me to serve as her law clerk. During my clerkship, I sharpened my skills in legal analysis and writing. Most importantly, I gained a lot of confidence from her feedback and trust in my work product. My time as a clerk for Judge Lowe contributed greatly to my development as an attorney and law professor. I cherish the moments.”

“Judge Lowe was steadfast in her commitment to justice. She was determined to do the right thing—she was willing to pay the price of a potential reversal to protect the rights and equal opportunities of the vulnerable. And, she showed enormous patience with parties and counsel, teaching them along the way so that their strongest arguments could be heard and assessed,” said Danielle Keats Citron, the Jefferson Schenck Distinguished Professor in Law at the University of Virginia and 2019 MacArthur Fellow. “She was a teacher to her core, a Pied Piper to generations of attorneys who appeared before her and her clerks. I am ever grateful to have been one of them.”

Paul Butler, another former clerk, opened a 2007 Minnesota Law Review article with the question, “What should a judge do when she must apply law that she believes is fundamentally unjust?” He went on to describe Judge Lowe, a former defense attorney, as carefully circumventing the Federal prohibition against informing juries about the concept of jury nullification. Butler wrote:

Some judges engage in milder forms of nullification, in which they seem to openly defy the law, but calculate that their action will not be subject to judicial review [. . .] Judge Lowe, instructing jurors on the burden of proof in criminal cases, would tell them that if they found the defendant guilty beyond a reasonable doubt, they “may” convict him. The U.S. Attorney’s Office sometimes objected, asking the judge to say “must,” not “may.” Judge Lowe always refused. Because verdicts of acquittal are not subject to judicial review, however, she effectively insulated her own “nullification.”

Precedent-Making Decisions

Voting Rights for Homeless New Yorkers

In 1984, the Coalition brought a Federal lawsuit, Pitts v. Black, against the State and City Boards of Elections on behalf of homeless New Yorkers residing in shelters, hotels, or on the streets who were not permitted to register to vote because they lacked a home address. Before trial, a consent decree permitting homeless people sleeping in shelters to register was signed, leaving open the question of whether unsheltered homeless people would also have the right to register and vote. In October of 1984, Judge Lowe ordered election officials to permit homeless people living on the streets to also register to vote. By way of introduction in her decision, she cited James Madison’s essay, The Federalist No. 57, with these words:

Who are to be the electors …? Not the rich more than the poor, not the learned, more than the ignorant, not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune. The electors are to be the great body of the people of the United States.

To summarize the case, she described the opposing positions with excerpts from the proceedings:

Plaintiffs view the term residence as the act of being in one geographical locale, where one performs the usual functions of sleeping, eating and living in accordance with one’s life style, and a place to which one, “wherever temporarily located” always intends to return. The named plaintiff, Dyer, testified at trial:

Q: Mr. Dyer, you said that you live in St. Gabriel [sic] Park, is that correct?

A: Yes.

Q: And St. Gabriel [sic] Park is approximately one block square, is that correct?

A: Yes, it is.

Q: And you sleep in the park on any one of six benches located around the baseball diamond, is that right?

A: Yes.

THE COURT: Mr. Dyer, when you spoke, of these places where you have slept,… for I think you said a couple of nights, I am asking you about your intent now, did you intend that those places that you slept were your home?

THE WITNESS: No, I’ve always sort of considered St. Gabriel [sic] Park as my home park or my home base.

Defendants maintain that the term “residence” necessarily implies the occupancy of a fixed premises. Mr. Thomas Wallace, Executive Director of the New York State Board of Elections testified,

Q. Mr. Wallace, do you believe that an individual who gives a park bench as his address would be a resident of the State of New York entitled to register to vote?

A. In my own opinion, I do not believe he could qualify under the statutory provisions defining residency.

Q. Can you tell us why, please?

A. The statute requires a fixed, permanent home and whenever temporarily absent, the person intends to return. I see that definition as carrying with it a requirement that the person have a right to the physical location, to the property.

Betty Dolen, Executive Director of the New York City Board of Elections testified,

Q. Mrs. Dolen, one general question.

Is it the position of the City Board of Elections presently that the homeless who do not live in shelters or welfare hotels may not register to vote?

A. That is the position the Board has taken.

Upon examining election district maps and comparing them with park boundaries, Judge Lowe wrote:

This Court believes that the difficulty expressed at trial, namely having a voter specifically designate his park bench by meets and bounds, with reference to another fixed location, is a non-issue. If, as plaintiff Dyer claims, he lives in St. Gabriels Park, that park is located entirely within the 61st. E.D. of the 63rd A.D. Therefore it would be unnecessary to either change the election maps in order to place location numbers on park benches or make any other costly alteration to present administrative procedures.

She found that homeless New Yorkers had been unlawfully disenfranchised in violation of the Constitution’s equal protection clause (Fourteenth Amendment) and decreed:

Homeless individuals identifying a specific location within a political community which they consider their “home base”, to which they return regularly, manifest an intent to remain for the present, and a place from which they can receive messages and be contacted, satisfy the more stringent domicile standard and should not be disenfranchised solely because they lack a non-traditional residence.

The decision in Pitts v. Black gives homeless people in New York some of the strongest voting rights protections in the United States. Indeed, a later case became necessary in 1992 when 240 of the 1,000 or so homeless men living at Camp LaGuardia, a City-run shelter located in a former women’s prison in Orange County, were denied the right to register to vote by the local Board of Elections, which had deemed them not to be residents eligible to vote, but rather “temporarily situated” in the county. Coalition for the Homeless v. Jensen was filed against the Orange County Board of Elections for its refusal to allow the homeless residents of the Camp LaGuardia shelter to register to vote. A Supreme Court judge required each registration applicant to appear in court in order to validate their residency, and although those applicants were permitted to register, the court ruled that those who failed to appear would not be permitted to register. On appeal, the New York State Appellate Division found that the disenfranchisement of these voter registration applicants was unconstitutional and that election officials had not taken reasonable, good faith steps to determine the true residency of the homeless men. The Appellate Division ordered the lower court to provide the rejected applicants an opportunity to demonstrate their residency, and if the lower court determined that their applications were improperly rejected, then their ballots were to be counted in the 1992 general election.

Rights of “Warehoused” Homeless Foster Children

Another important case found its way to Judge Lowe’s courtroom in 1986 when children in foster care, represented by The Legal Aid Society, challenged the City’s practice of “overnighting” foster children in temporary nightly placements in Doe v. New York City Department of Social Services. This policy relegated foster children to spend each day waiting in offices to be placed for only a night before repeating the process the next day. Judge Lowe wrote in the introduction to the opinion accompanying her precedential 1987 preliminary injunction:

This case is about the substantive due process rights of children whose family is the City of New York because their parents either aren’t permitted to continue custody or voluntarily surrender it. The children involved in this lawsuit are repeatedly kept in city offices during the day, don’t know where they will sleep at night and carry their possessions from place to place in plastic garbage bags. The central legal question for this court’s decision is whether the city can constitutionally maintain such a system of overnight foster care “placement” which results in the city’s continued ability to remove children from their homes without having other homes for them.

A failed attempt to reach a settlement agreement was followed by complex and contentious litigation that unfolded while the situation became even more critical for the children: Dozens of foster children were left to sleep overnight in government offices because the City had failed to obtain proper placements for them, and hundreds of them were “overnighted” each month between January and June of 1987. Judge Lowe recounted the stories of more than a dozen foster children who had been left in limbo for months, and wrote:

By effectively transforming a portion of the City’s foster children into homeless children while they await placement, the City has evolved a program not reasonably related to the purpose for which the defendants obtained custody. The City’s failure to exercise professional judgment in the provision of adequate shelter and treatment to overnighters has deprived them of liberty without due process of law. Accordingly, we find that the plaintiff class is entitled to preliminary injunctive relief.

The parties reached agreement on their second attempt at a settlement a few years later, and after three years the case was dismissed.

Rights of Families With Children Who Use Federal Housing Vouchers

In another important ruling, Judge Lowe addressed problems that persist to this day: discrimination on the basis of family composition, and discrimination on the basis of source of income (which has now been made unlawful in broader contexts). In Glover v. Crestwood Lake Section 1 Holding Corp., she granted class certification and issued an important ruling on behalf of prospective tenants with Federal housing vouchers who were denied the opportunity to rent apartments in a development that already had tenants with Federal housing vouchers, based upon the presence of a child or children in the household. With respect to discrimination against prospective tenants with Federal housing vouchers, she wrote:

Crestwood’s refusal to accept certain provisions of the HUD-mandated Section 8 voucher lease cannot be interpreted as anything but a refusal to rent an apartment to a Section 8 voucher holder applicant as a result of that applicant’s status as a Section 8 voucher holder. Since Crestwood has previously entered into contracts for housing assistance payments on behalf of its four Section 8 certificate tenants, its actions clearly violate the anti-discrimination provision, 42 U.S.C. § 1437f(t).

With respect to discrimination against prospective tenants with children who have Federal housing vouchers, she wrote:

It is the finding of this Court that defendant’s practice of refusing to rent an apartment to a Section 8 voucher holder solely on the basis of that household’s size when they would rent that same apartment to the same sized household where there is the presence of an adult instead of a child constitutes discrimination on the basis of familial status. Landlords may not refuse applicants apartments which they can afford and desire solely because these households do not conform with the landlord’s traditional notions of what constitutes a family unit. If the landlord would make that size apartment available to a household consisting of the same number of individuals, but with more adults and less children, the landlord must accept the otherwise qualified Section 8 household as a tenant for that size apartment. Otherwise, the landlord is guilty of discriminating against that household on the basis of that family’s familial status. Since Crestwood has admitted to such a practice, it has been unlawfully discriminating against applicants who are single parents.

Throughout her career, Judge Lowe clearly worked diligently to grasp the humanity of the plaintiffs, the applicable laws, the obligations of government agencies, and the legal determinations and relief required to hold defendant officials and organizations accountable and remedy the discrimination that harmed homeless and low-income New Yorkers. Her precedent-setting decisions have made and continue to make life better for our most vulnerable neighbors, and her legacy is one we are proud to highlight as the Coalition marks our 40th anniversary.