Political Science Quarterly
Volume 119, Issue 2, Page 387, Summer 2004
Gay Rights and American Law by Daniel R. Pinello. New York, Cambridge University Press, 2003. 366 pp. Cloth, $70.00; paper, $23.00.
Daniel R. Pinello provides a highly provocative empirical analysis of how American appellate courts over the last twenty years have addressed lesbian and gay rights claims. The project is striking, not only in its scope, but also with respect to some of the conclusions Pinello draws. In addition to investigating the particular subject matter of gay and lesbian rights, however, Pinello promotes his analysis as an example of how to bridge the professional and intellectual gap between political science and law scholarship, a gap he suggests exists because “law professors and political scientists generally have neglected each other’s contributions” (p. 3). To that end, Pinello strives to explain his empirical study in a manner that is both accessible and relevant to lawyers without skimping on the standard quantitative data analysis essential to political scientists.
At the outset of the book, Pinello dedicates a lengthy chapter to case narratives that offer an anecdotal glimpse into the biases and roadblocks gay and lesbian litigants face when attempting to advance their rights claims (pp. 17-71). These extended excerpts provide an eye-opening introduction for those unfamiliar with instances of discrimination against gay people; and, for those who teach and write about gay rights issues, the narratives (along with the exhaustive compilation of gay rights cases in the appendices) serve as a wonderfully valuable data source. While the narratives certainly help set the stage for Pinello’s empirical analysis, the excerpts are left largely unadorned, without much commentary from Pinello. Of course, this approach arguably lets the cases speak for themselves. But Pinello surely selects certain cases to illustrate a particular trend regarding the treatment of gay people, and greater elaboration of exactly what Pinello believes the excerpts demonstrate would help those unfamiliar with the nuances of gay and lesbian rights understand what is at stake.
With respect to the empirical study itself, Pinello examines thirty-nine attitudinal, environmental, legal, and other factors that might help explain the outcomes of the 468 appellate court cases addressing gay civil rights claims during the last two decades. Pinello argues that the models he develops predict case outcomes “with reasonable degrees of accuracy” (p. 104), although he acknowledges the models do not work quite as well for predicting Supreme Court outcomes (p. 97).
On the basis of his findings, Pinello draws a number of interesting conclusions. He argues that judges in southern states and those appointed by Republican presidents are not particularly accommodating of gay rights claims (pp. 145, 151), a finding probably not surprising to some readers. In contrast, Pinello concludes that diversity in the judiciary with respect to age, gender, race, and religion substantially increases the likelihood of success for gay rights claimants (p. 146). Perhaps most provocative, however, is Pinello’s conclusion that a new judicial federalism is developing, with state courts far more likely to embrace gay rights under state constitutions than either federal or state courts seem willing to recognize under the U.S. Constitution. As a result, Pinello states, there is “virtually no empirically based reason to anticipate success for lesbian and gay litigants in federal fora as they are constituted currently or in the foreseeable future” (p. 146).
This last conclusion seems a bit overstated for at least two reasons. First, without a comparison of the success rates of gay rights claims between state courts and federal courts located within the same federal circuit (which Pinello does not provide), it is not clear that an actual litigant living in any state would be better advised to pursue a claim in that state’s court system rather than in the federal courts of the particular circuit in which the state is situated. Second, Pinello published the book just before the Supreme Court handed down its decision in Lawrence v. Texas, the landmark case overruling Bowers v. Hardwick and recognizing under the Due Process Clause a right to engage in same-gender sexual activity. Although the ramifications remain uncertain, it seems likely that the decision will give rise to a spate of gay rights litigation under the federal Constitution. Thus, the Lawrence case may work substantially against the evolution of the “new federalism” Pinello describes.
Finally, in an apparent effort to demonstrate the contrast in attitudes between political scientists and law professors, Pinello closes the book with a section detailing excerpts from Internet postings authored by “legal academics” who raised “normative objections” when requested by Pinello to assist in collecting data on the otherwise unpublished religious affiliations of certain judges. Pinello explains that the excerpts were included to “highlight[ ] the diversity of opinion over the place of quantitative empirical legal study in academe and beyond” (p. 155). Despite Pinello’s goal, the limited anecdotal excerpts do not really capture the full diversity of opinions regarding the place of empirical legal study, and the sour tone distracts from Pinello’s primary analysis. That ending seems unfortunate, considering Pinello’s earlier pledge to bridge the gap between political scientists and legal scholars.
In the end, Pinello’s work represents a thought-provoking analysis that invites further commentary and empirical study from lawyers and political scientists alike.
– Michael R. Siebecker
Hofstra University School of Law