Perspectives on Politics

of the American Political Science Association

Volume 2, Number 2, Page 385, June 2004

 

This ambitious book will be of interest to scholars in a wide range of fields, including judicial politics, civil rights, social movements, U.S. federalism, and lesbian and gay politics. The book provides much that will be of considerable interest to lesbian and gay rights activists. It is the first book-length quantitative study of gay and lesbian rights litigation, and as such is a treasure trove of information, as well as of questions that deserve further exploration. The detailed appendices also carefully document the author’s approach to researching the subject and the state of quantitative research on judicial behavior in this area of law, and thus could prove useful to scholars teaching research methods as well. The volume also raises more questions than it answers regarding the normative questions surrounding both gay rights litigation and the American legal system, questions perhaps more properly treated by political theorists than by legal empiricists.


Daniel Pinello sets out to study how both federal and state appellate courts treated cases regarding lesbian and gay rights between 1981 and 2000. To do so, he identified 468 cases during the period of study that addressed the rights of lesbian and gay people. In addition to analyzing the case outcomes, he conducted a survey of state judges to collect personal attribute information. Combining the attitudinal and legal approaches to judicial decision making, Pinello provides a comprehensive quantitative analysis of the cases selected, as well as a qualitative discussion of case narratives. For purposes of analysis, he classifies the cases according to subject matter as well as their centrality to lesbian and gay rights claims.


The book begins with a general overview of the research questions it raises and its basic conclusions based on the empirical data. The second chapter presents the human side of gay rights litigation through case narratives of selected cases. This chapter itself may be worth the price of the book to activists since it brings together many of the cases frequently cited by activists and provides more depth and context for the cases. The cases are selected not just for their significance but also for the ways in which they illustrate the empirical findings presented in later chapters. Many of the federal cases will be familiar to those steeped in this arena of law, such as Nabozny v. Podlesny (7th Cir. 1996); others such as Stemler v. City of Florence (6th Cir. 1997) will be less familiar – but Pinello is certainly correct to call the facts of this case “astounding” (p. 42). The case illustrates that homophobia combined with the failure to take domestic violence seriously on the part of police can have fatal consequences, and the author’s analysis of the case rings true.


The heart of the book is Pinello’s quantitative analysis of the cases in Chapters 3, 4, and 5. The third chapter will particularly interest scholars of judicial behavior, and the findings are too numerous to list comprehensively here. Pinello finds that regional variations do make a difference; southern states are less conducive to gay rights claims. In addition, states that still had state sodomy laws were less likely to find in favor of gay rights litigants, particularly in cases involving family law. Subject matter also mattered: Courts generally saw discrimination claims and claims regarding free speech and association rights in more favorable terms than family rights cases. The author also found some temporal variation with respect to family law cases: Courts in the 1990s began to see these claims in a more favorable light than did courts on similar claims made in the 1980s. In terms of judges’ individual characteristics, judges who were younger, female, Jewish, and/or members of racial or ethnic minorities voted more often in favor of gay rights than did judges who were male, Catholic or fundamentalist Protestants.


Those interested in judicial federalism will find Chapter 4 of most interest. Here, Pinello tests the question of whether state or federal courts are more friendly venues for federal civil rights claims. Contradicting the arguments of some judicial behavior scholars, his analysis confirms that state courts have provided more favorable outcomes to gay rights litigants. This is so despite the fact that state courts are more frequently the arena for less successful areas of litigation in gay rights, such as family law.


Although Pinello notes that he did not set out to study the role of precedent, or stare decisis, his exploration of this subject is interesting whether or not one is interested in gay rights. Because of the novelty of some of the questions raised in gay rights litigation, this area of law provides many legal questions on which there is little in the way of binding precedent. Thus, he examines the behavior of judges in cases where there is, and where there is not, binding precedent. Scholars of judicial behavior will find in his methodological innovations much to explore. Unsurprisingly, Pinello finds that intermediate appellate courts were more bound by stare decisis than were courts of last resort. It is interesting to note that he also found that conservative justices seemingly [were] more influenced by stare decisis in this area of law than were liberal justices.


The book’s concluding chapter summarizes the author’s findings regarding regional variation in case outcomes, what he terms “the promise of the states” (p. 145), and the value to gay and lesbian litigants of diversity on the bench. An especially interesting discussion in this chapter relates to the question of whether, and in what ways, judges’ religious affiliations are relevant to judicial decision making. Pinello’s findings that judges who listed their religious affiliation as Catholic were much less likely to vote in favor of gay rights litigants than judges whose affiliation was Jewish is not surprising, but what does this mean for consideration of religion in judicial appointments and elections? Pinello reproduces an Internet discussion by law professors regarding the propriety of studying judges’ religious affiliations and their effects on judicial behavior. He suggests that, given the significance of judges’ religious affiliations on outcomes in gay rights litigation, these affiliations are a matter of public import. As a good empiricist, however, he is not willing to push this discussion too far, and so the discussion raises more questions then he himself explores.


Pinello has written a thoroughly documented, highly useful, and careful scholarly study of gay rights litigation in the last two decades of the twentieth century. It is an important book that should be much discussed by gay rights activists as well as legal and political theorists and scholars of American politics. Given the rich empirical data that he has provided, there is much ground here for empiricists, and much of great interest to those interested in more speculative and normative explorations of the topic as well. Pinello notes his debt to Rogers Smith, and Gay Rights and American Law is a fine example of the kind of empirical scholarship that American political theorists should find invaluable in advancing normative inquiry regarding the U.S. political system as a whole. The questions of judicial federalism, and of the role of law and courts in protecting the rights of minority groups, are far too important to leave solely to judicial behavioralists and legal empiricists. 

– Jyl Josephson, Rutgers University, Newark

 

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