Harvard Civil Rights-Civil Liberties Law Review

Volume 39, Page 275, Winter 2004

Gay Rights and American Law. By Daniel R. Pinello. Cambridge, U.K.: Cambridge University Press, 2003. Pp. 162 + appendices, index. $23.00 (paper).

In Gay Rights and American Law, Daniel R. Pinello demonstrates the value of quantitative analysis to legal scholarship. The book provides important analysis of the recent legal history of the lesbian and gay rights movement. More generally, it supplies insight into, and valuable analysis of, the judicial decisionmaking process. It might also usefully be employed by [legal] scholars or social scientists as a model for quantitative analyses of particular legal areas. Throughout this detailed and engaging work of empirical research, Pinello conveys his impatience with the current rate of progress towards consistent American judicial respect for gay and lesbian relationships and individuals.

A political scientist at the John Jay College of Criminal Justice of the City University of New York, Pinello explains that he decided to focus on lesbian and gay rights cases because they provide a relatively discrete issue area that traverses several traditional categories of legal doctrine. Courts continue to confront issues of first impression within the context of the evolving social movement seeking civil rights for gays and lesbians. Gay rights cases also evoke strongly held personal views, which often surface in judicial opinions, and thereby provide insight into the part a judge’s perspective plays in her decisionmaking process.

Pinello dissects 468 appellate court decisions from the 1980s and 1990s. He divides the cases between those “essential” to gay rights and others consisting mainly of same-sex sexual harassment claims and defamation suits involving an allegation of homosexuality. He subdivides the essential cases into those involving custody, visitation, adoption, foster care, or other family law issues, sexual orientation discrimination, gays in the military, sodomy law challenges, free speech/association, and miscellaneous issues. Also, he maintains separate statistics for courts of last resort and intermediate appellate courts. Each case yields an “outcome” of 0 (ruling against gay rights) or 1 (in favor), such that aggregate outcomes provide one measure of the probability of success for a litigant pursuing a gay rights claim.

To enrich the book’s technical nature, Pinello includes valuable and engaging anecdotes that supplement his statistical data. As part of the book’s conclusion, Pinello presents interesting excerpts from a debate about judicial privacy that erupted on an Internet discussion group for law professors after Pinello posted questions about the religious affiliation of judges who had not made the information public. In another chapter, Pinello humanizes his numbers with a series of narratives describing selected cases in the study. This not only clarifies the legal issues, but also powerfully demonstrates the cases’ importance to people’s lives. The narratives range from an administrative saga in which the Oregon Health Sciences University denied insurance coverage to domestic partners, to a sad tale of [a] high school bullying victim named Jamie Nabozny, to a horrific account of homophobic actions by Kentucky police officers that led to a violent death. The Kentucky story, while highlighting the deeply felt human concerns buried within Pinello’s statistics, also shows that institutions outside the judiciary must change if lesbian and gay Americans are truly to achieve equality.

Many of Pinello’s findings about the effects of geography and a judge’s personal background on her decisionmaking are hardly surprising. Scholars will profit, however, from meticulous documentation demonstrating these links. For instance, Pinello shows that judges in the Midwest and South are less inclined to rule in favor of gay rights claims than those in other regions. Judges who are young, female, Jewish, or members of racial minorities are most likely to uphold gay rights. As a consequence, Pinello exhorts progressive activists to continue advocating for greater diversity on the bench. He also analyzes the impact of institutional and environmental factors on court outcomes, such as the method of judicial selection and the prevailing local political ideology. Pinello determines that appointed judges, contrary to popular belief, are no more likely to support gay rights claims than their elected counterparts. On the other hand, judges who have previously held elective office are less likely to show support for gay rights. In addition, the chances of success for a gay rights claim generally increased over the twenty-year time frame of the study.

Perhaps more surprisingly, Pinello proves that lesbian and gay rights claims fared significantly better in state court than in federal court, with success rates of 57.2% and 25.6%, respectively. He considers various possible explanations for this discrepancy, including case subject matter, the favorability of the substantive law, and the demographic composition of the state and federal bench. Involvement of public interest law firms improved the odds by 32% in federal court, but had no significant impact in state court. Pinello attributes this to state judges’ relative lack of interest in amicus briefs in family law cases. Other causal factors might include the nonprofits’ relative inexperience with state litigation and tendency to devote more resources to higher-profile federal cases.

Finally, Pinello evaluates the role of stare decisis. Contrary to previous findings, he concludes that precedent – even non-binding precedent – continues to have a major impact on most judges’ decisionmaking. He also establishes that adherence to precedent more often led a judge to uphold gay rights than to reject them. The existence of anti-gay statutes was also influential on outcomes. Pinello urges gay activists to “strive for further decriminalization of consensual sodomy,” because outcomes in all subject areas were more favorable to gay rights in jurisdictions without sodomy bans. The book does not address implications of the decision in Lawrence v. Texas [123 S.Ct. 2472 (2003)], which was announced within weeks of publication.

Pinello briefly notes differences in outcome between cases involving gay males as opposed to lesbian litigants. He also acknowledges, first in reference to the gruesome Kentucky case and then in a section on defamation suits, that judges have traditionally been more receptive to the claims of individuals falsely accused of homosexuality than those of openly gay people. Pinello fails to address, however, whether litigants’ personal characteristics, such as race, class, age, or gender presentation, affect their chances of success. Similarly, despite touching on the role of nonprofit legal groups, Pinello does not address the adequacy of representation by counsel as a factor in case outcome.

Despite the book’s mostly technical content, Pinello carefully ensures that even readers without a background in statistics will be able to understand his work. Although the book consists largely of statistical data, Pinello coherently and engagingly annotates his findings. Numerous charts of [logistic] regressions and other supplemental data follow the main text. In chapters with especially high concentrations of mathematical language, italicized topic sentences serve as accessible summaries of the research findings. Ultimately, Pinello’s work will benefit gay rights advocates, as well as those exploring the roots of judicial decisionmaking more generally.

– Amanda C. Goad


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