Gay Rights and American Law

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Daniel Pinello's exhaustive study analyzes how federal and state appellate courts treated the civil rights claims of lesbians and gay men between 1981 and 2000. Pinello examines 1,439 votes by 849 appellate judges in 398 decisions and opinions from 87 courts in all federal jurisdictions and 47 states. His investigation reveals that legal variables; judges' personal attributes; environmental factors (juridical ideology, consensual sodomy statutes, and gay civil rights laws); institutional determinants (judicial selection method and term length); and time and interest group participation were significant forces in judicial policymaking.

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Editorial Reviews

From the Publisher
"[A] highly provocative empirical analysis...The project is striking..." Michael R. Siebecker, Hofstra University School of Law, Political Science Quarterly

"This book provides not only an excellent survey of recent judicial developments in the law of gay rights but, even more importantly, a superb empirical study of the determinants of judicial decision making, using the context of gay rights cases. Unlike most research in this field, Pinello carefully considers the role played by the law and precedent in court opinions. His analysis is based on extensive data. I highly commend it to scholars interested in the factors involved in judicial policymaking, as well as those concerned about gay rights law. It is simply the single best study of judicial decision making of which I am aware." Frank Cross, University of Texas at Austin

Gay Rights and American Law makes an impressive contribution both to the contemporary debate over lesbian and gay civil rights and to the scholarly literature on the politics of judicial choice. This intriguing volume comprehensively describes critical federal and state appellate decisions adjudicating the rights claims of homosexuals. But perhaps more importantly, the book provides a scientifically rigorous analysis of judges' votes in those cases and then places its empirical findings in a framework informing extant theories of judicial choice. The work is systematic, creative, and insightful. Without question, Gay Rights and American Law is a "must read" for anyone concerned with the fascinating politics of judicial policymaking or the struggle for civil rights in America. Melinda Gann Hall, Michigan State Univerity

This marvelous, well-argued book by a political scientist rigorously tests various assumptions about when American courts and politicians advance, and when they retard, legal recognition of the human rights of gay and lesbian persons. No serious activist, scholar, or citizen can ignore its findings (for example, the crucial importance to gay and lesbian rights of both presidential judicial appointments and the diversity of judges). David A.J. Richards, New York University

"Gay Rights and American Law is an excellent analysis of judicial decision-making on gay rights issues that should be read by public law researchers, whether their focus is quantitative or qualitative analysis." Law and Politics Book Review

"This pathbreaking work presents a thorough analysis of a comprehensive dataset of the 393 state and federal appellate court decisions 'essential' to gay and lesbian rights during the last two decades of the 20th century and the judges who cast votes in them.... Essential." Choice

"In this comprehensive examination of appellate court decisions affecting gay and lesbian civil rights during the last two decades of the twentieth century, Daniel Pinello uses statistical analysis to illustrate the interplay of diverse factors influencing judicial decisionmaking...Civil rights activists, legal practitioners, political scientists, and legal scholars should all take note of this comprehensive and thought-provoking book." Harvard Law Review

"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... Throughout this detailed and engaging work of empirical resesarch, Pinello conveys his impatience with the current rate of progress towards consistent American judicial respect for gay and lesbian relationships and individuals." Harvard Civil Rights-Civil Liberties Law Review

Frank Cross

GAY RIGHTS AND AMERICAN LAW is an excellent analysis of judicial decisionmaking on gay rights issues that should be read by public law researchers, whether their focus is quantitative or qualitative analysis.  The book should be of great interest to those who focus on gay rights but may be of greater interest to those who study judicial decisionmaking more broadly.  Although the book contains a qualitative summary of some recent gay rights decisions, its focus is an extensive quantitative analysis of the determinants of judicial rulings on gay rights matters, in both the state and federal courts.  The data in the book incorporate 1439 separate judicial votes by 849 distinct judges over a thirty year period.

Pinello analyzes outcomes with numerous factors considered as independent variables.  These include the traditional attitudinal variables, such as the judge’s political party, ethnicity, gender, religion and regional cultural environment.  He also considers institutional factors such as whether the case was in state or federal court, whether the court was intermediate appellate or a court of last resort, and the selection method for state court judges.  Most significantly, Pinello considers the effect of an existing clear precedent on the judicial decision and whether that precedent was horizontal or vertical for the deciding court.  The resulting analysis yields some interesting and significant results.

The results for attitudinal variables are much as might be expected, though Pinello found that the political party effect was largely confined to federal cases.  In state courts, other background factors assumed greater significance.  Minority judges and women were more sympathetic to gay rights claims.  One of the book’s more significant findings is the substantial effect for judicial religion, with Catholic judges being particularly hostile to gay rights claims.

The results for institutional variables were dramatic and important.  Most significantly, Pinello found that state courts were far more favorable to gay rights claims.  State courts decided for gay rights approximately twice as often as did federal courts.  However, state selection methods did not produce results with a clear theoretical conclusion.  Elected judges actually were more favorably disposed to gay rights claims than were appointed judges, but so were judges who served for longer terms of office.

Perhaps the most significant and interesting results involved Pinello’s direct test for legal precedent, a variable that is often absent in empirical studies of judicial decisions.  He found that legal precedent played a very important role in explaining judicial decisions, especially at the intermediate court level.  The most interesting test of precedent began first by using the other independent determinants to assess the probability of a decision for gay rights.  Pinello then analyzed where the other variables would predict a lower than one-third probability of a pro gay rights decision.  When there was no clear precedent, these judges voted for gay rights only 20% of the time, as expected.  When there was a clear favorable precedent, though, these judges voted for gay rights 67% of the time!  Similar but less dramatic effects were found for other judges.  Another very significant finding was that a positive, pro gay rights precedent had a much stronger effect on future decisions than did a negative, anti gay rights precedent.

Other factors analyzed in the book include the effect of gay rights case type (e.g., family issues, discrimination, criminalization), changes over time, the involvement of interest groups as parties or amici, and characteristics of the gay litigant, such as gender.  The book contains considerable analysis of these variables and other regressions including case type factors, too extensive to be summarized in this brief review.  The analyses presented in the book provide important evidence on judicial decisionmaking and also break new ground on the analysis of decisions, using legal variables.

One final aspect of the book deserves mention, as Pinello concludes with a brief summary of research methods and quantitative analysis of the law.  In order to complete his coding of the religion of judges, he posted questions to listserv lists regarding a few judges for which he lacked data.  While this drew little reaction on a list comprised mainly of political science professors, it stirred up quite a controversy on a list comprised primarily of constitutional law professors.  A number of these academics took offense to any examination of the religion of judges, a reaction that Pinello reviews.  The experience documents an unfortunate interdisciplinary divide on both methodological issues and the analysis of judicial decisionmaking itself.      -McCombs School of Business and University of Texas Law School

Harvard Law Review
In this comprehensive examination of appellate court decisions affecting gay and lesbian civil rights during the last two decades of the twentieth century, Daniel Pinello uses statistical analysis to illustrate the interplay of diverse factors influencing judicial decisionmaking. Professor Pinello's work encompasses a broad array of issues - from child custody, visitation, adoption, and foster care, to sodomy laws and related solicitation statutes - that defined the struggle for gay and lesbian civil rights in the 1980s and 1990s. Professor Pinello bridges the gap between political science and law by incorporating attitudinal, institutional, environmental, and temporal data into his econometric models. The conclusions that Professor Pinello reaches are often surprising. For example, he demonstrates that, contrary to conventional wisdom, state cou rts are no less hospitable than federal courts to the agendas of gay and lesbian civil rights advocates. Though Professor Pinello uses sophisticated regression analysis, his work is accessible to readers with little background in statistics. Civil rights activists, legal practitioners, political scientists, and legal scholars should all take note of this comprehensive and thought-provoking book.
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Product Details

  • ISBN-13: 9780521812740
  • Publisher: Cambridge University Press
  • Publication date: 6/28/2003
  • Pages: 349
  • Product dimensions: 5.98 (w) x 8.98 (h) x 1.10 (d)

Table of Contents

1. Introduction; The context of the study; The cases; Case outcome variation by court system and subject matter; Geographic variation; Temporal variation; 2: Case narratives; Child custody, visitation, adoption, and foster care (CVAF); Lesbian and gay family issues not involving CVAF; Cases adjudicating sexual orientation discrimination claims not related to lesbian and gay family issues; Gays in the military; Cases adjudicating the constitutionality of consensual sodomy and related; Solicitation statutes and their Enforcement against gay people; Cases adjudicating the free speech and free association rights of gay people; Miscellaneous cases essential to lesbian and gay rights; Same-sex sexual harassment; Defamation involving homosexuality; Miscellaneous cases not essential to lesbian and gay rights; Conclusion; 3: The lesbian and gay rights claims models; The statistical analysis; Findings; Applying the models; Answers to questions posed in chapter 2; Model performance; Conclusion; 4: Judicial federalism and the 'myth of parity'; Judicial federalism variables; Findings; Conclusion; 5: A test of stare decisis; The legal literature; The political science literature; Lesbian and gay rights claims and precedent; Test one; Test two; Caveats; Conclusion; 6: Conclusion; Location, location, location; The promise of the states; The value of diversity on the bench; Time is on our side, Yes it is!; The vital role of interest groups; The power of precedent; Democrats, republicans, and gay rights; The forces motivating judicial decision making; The quantitative study of rights and of law; Epilogue.

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