Gay Rights and American Law.

• Author: Cross, Frank B.
• Position: Brief Article - Book Review

GAY RIGHTS AND AMERICAN LAW. By Daniel R. Pinello. New York: Cambridge University Press. 2003. Pp. xv, 349. Cloth, $70; paper, $23.

One can find many analyses of the development of gay rights law in America but none are so illuminating as Daniel Pinello's (1) in his book Gay Rights and American Law. More significantly, while it offers a superb understanding of the recent record of gay rights litigation, the book provides a fine-grained and sophisticated understanding of judicial decisionmaking in this important and developing area of the law. Indeed, the value of the book for students of judicial decisionmaking even transcends its value for students of gay rights jurisprudence.

Quantitative empirical studies of judicial decisionmaking, well established in political science, have steadily burgeoned in the legal literature. Such research is enormously important to understanding the law. (2) Unfortunately, much of this research has been incomplete and too discipline-centered. Thus, economists empirically study the law from their own perspective without sufficient appreciation of the claims of law and political science, while political scientists too often fail to appreciate the importance of legal and economic considerations. The disciplines have much to learn from one another. (3) While legal researchers may have done less empirical work than those in other disciplines, and may have erred in the conduct of this research, (4) they have been more integrative in this research and done a much better job of illuminating the importance of law itself. Pinello is a political scientist but conducts his research with an insightful appreciation of the law that is often lacking in political science research.

The context in which Pinello studies judicial decisionmaking is that of gay rights. His focus on this relatively narrow slice of the law helps us understand judicial decisionmaking more generally. First, as the focus narrows, one can better capture detailed variables that may be unavailable in a much broader context. Second, the narrower focus can show how the determinants of judicial decisionmaking are not uniform across the entire body of cases but may vary by case type. In the end, his book tells us a great deal about the development of gay rights law in America, much more than we can learn from a traditional analysis of cases and purely legal arguments.

The book begins with "narratives" of some of the interesting gay rights decisions, but I will focus on the empirical analyses. The crux of the book is in this extensive empirical research, which I summarize and place in the context of prior analyses in Section One of this Review. Section Two addresses the practical implications of the empirical findings of Pinello and others on legal and public-policy matters of contemporary concern. In Section Three, I examine the book's findings in the context of the recent Supreme Court decision in Lawrence, striking down the Texas anti-sodomy statute. The fourth and final Section departs from gay rights to consider the broader implications of Pinello's research methods and findings on legal research. Legal academics have been unduly and unfortunately averse to empirical analyses, which may be critical to our research enterprise.

1. THE EMPIRICAL ANALYSIS OF GAY RIGHTS

   In his attempt to isolate the determinants of decisions advancing gay rights, Pinello conducts an empirical study of decisions on various gay rights topics. He analyzed 391 decisions, including 1439 separate votes by 849 appellate judges, over a thirty year period (p. 74). For each of these votes, Pinello coded numerous variables. He coded each case by type of issue and other factors such as amicus participation, coded each judge according to numerous individual characteristics, coded various institutional circumstances (such as court characteristics) and coded whether there was clear legal precedent governing the case.

   The gay rights issues considered by Pinello included as "essential" are family matters (such as adoption rights and rights of domestic partners), sexual orientation discrimination in employment, gays in the military, the constitutionality and enforcement of laws criminalizing consensual sex practices, and free speech and free association rights of gays (p. 8). He also includes some cases he considered nonessential, such as defamation cases and same-sex sexual harassment. The family matters category contains the most cases in the database (p. 10). The book breaks down results for cumulative gay rights actions and for categories of case types. Pinello presents considerable detailed data on all his variables and correlations in extensive appendices (pp. 163-215). He also lists all the cases used in his study, giving considerable transparency to his analysis, and permitting the evaluation and replication of his research (pp. 167-213).

   The central aim of the book was to ascertain which factors (judge, casetype, legal, etc.) best determined whether a case would yield an outcome favorable to gay rights. The book studies the effect of a substantial number of variables, which may be broken down into attitudinal factors (those involving the individual judge and her background), institutional factors (those involving judicial selection and surrounding institutions), and legal precedents that are supposed to be driving these decisions. Pinello found all these factors to be of some importance, in varying degrees, as discussed below.

   1. Attitudinal Factors

      Attitudinal factors are the individualized characteristics of the particular judge. These have sometimes been referred to as the "background" of the judge. (5) The background factors that may affect judicial decisions are the manifold influences that enter into every person's makeup. They include all the genetic and environmental factors that may influence a person. Empirical research has consistently confirmed that individual judicial attitudes are a key determinant of judicial decisions. (6) While judges profess fealty to the law, they have at times conceded that their decisions are influenced by attitudinal background factors. (7) The most significant attitudinal factors addressed in Gay Rights and American Law are religion, ethnicity and gender, political party affiliation, and cultural environment.

      1. Religion

         In the earlier days of empirical research on judicial decisionmaking, it was believed that such a fundamental background factor as religion would play some role in decisions. (8) Religion appears to play a role in voting for political offices. Establishing the strength of this connection for judicial decisions proved elusive for some time, however. (9) There is some evidence that a judge's religion influences his decisions in some types of cases, though, (10) and Pinello builds on this with his study of gay rights decisions. His findings on religion are possibly the most controversial in the book. (11)

         The pattern of voting by judges of different religions is fairly stark. Jewish judges were by far the most likely to cast pro-gay rights votes (68.5% in all cases and over 71% in family cases) (p. 88). This is a greater success rate than for judges who subscribe to no religion (66% and 55% respectively). Catholics were the least likely (under 45% in all cases and only 43% in family cases). In prior research that found some religious difference in judicial voting, Catholic judges have been more liberal, so the gay rights context may be a unique context (pp. 88-89).

         When Pinello sought to break out the Protestant dominations that might be considered fundamentalist, he found some difference. 52% of the fundamentalist votes were against gay rights claims, while 45 % of the votes of other Protestants were against gay rights claims (p. 89). This difference is not a dramatic one and perhaps a little surprising, as it seems that fundamentalist protestants were reasonably open to gay rights claims. In short, religious background clearly seems to matter in judicial decisionmaking, though not in a clear or simplistic manner. Religion does not appear to drive judicial decisions on gay rights but exerts some influence at the margins, depending upon the type of case and particular religious philosophy.

         Pinello himself cautions against oversubscribing to his results, noting that "some Catholic judges such as William Brennan, Jr., supported gay rights, and some African Americans such as Clarence Thomas did not." (p. 100). His results can support only a probabilistic judgment about the effects of a particular background on judicial decisions. The data clearly demonstrate that a judge's religious background does matter somewhat, though, in how he or she will vote on gay rights claims, and in a fairly consistent predictable way.

      2. Ethnicity/Gender

         Another background factor that might be expected to influence judicial decisions is the judge's ethnicity or gender. Ethnicity and gender have some correlation with political attitudes and voting, but empirical studies of their effects on judicial decisionmaking have been mixed. (12) One review and analysis of the research concluded that "empirical studies show only slight, if any, differences between the overall voting behavior of male and female judges along the dimension of gender. (13) Indeed, most female judges dispute that their gender makes any difference in their decisions. (14)

         Pinello tested the hypothesis that ethnicity and gender could make a difference in judicial voting patterns on gay rights cases. He found that minority judges (operationalized as African Americans, Latinos, and Latinas) were about twenty percent more likely to vote in favor of gay rights claims than their majority counterparts (p. 78). Gender also had a significant association with the judge votes on gay rights. Women were twelve percent more likely to vote for such rights on all the essential claims and twenty-seven percent more likely on cases involving child custody, visitation...