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.
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.
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.
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.
– Jyl Josephson, Rutgers University, Newark
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