Gendered justice: do male and female judges rule differently on questions of gay rights?

• Author: Smith, Jr., Fred O.

INTRODUCTION: WHEN AND WHERE I ENTER I. GENDERED JUSTICE A. The Dataset B. Results 1. Age and decision year 2. Region 3. Political party 4. Method selected and jurisdictional level C. Controlling for Legal Doctrines D. Alternative Methodological Considerations II. UNDERSTANDING THE JUDICIAL GENDER GAP A. Legislature: Congress and the Defense of Marriage Act B. General Social Survey Data C. Role of Law School D. Gender Role Attitudes CONCLUSION: IMPLICATIONS AND FUTURE EXPECTATIONS APPENDIX A: CASES APPENDIX B RESULTS APPENDIX C: DOMA VOTE The problem of the twenty-first century is the problem of the gender line. (1)

INTRODUCTION: WHEN AND WHERE I ENTER (2)

A political firestorm rages. In the past year, issues related to gay rights have suffused America's political imagination (3)--and two court decisions helped create the controversy. In July of 2003, the U.S. Supreme Court announced in Lawrence v. Texas that statutes criminalizing homosexual sodomy violated key constitutional principles. (4) Only four months after the Court announced its decision, the Massachusetts Supreme Judicial Court held in Goodridge v. Department of Public Health that same-sex couples had a right to marry under the Massachusetts state constitution. (5) Legal scholars and sociologists alike will undoubtedly grapple with these decisions. For legal technicians, these cases raise questions about the future of due process, equal protection, and freedom of association jurisprudence. (6) And for sociologists, these decisions raise questions about America's evolving definition of family and the efficacy of religious-based activism. (7) Yet, upon further inspection, one of the intellectually rich issues of Lawrence and Goodridge is subtler.

One notable quality of cases like Lawrence and Goodridge is the gender composition of the appellate judges who crafted them. In Lawrence, both of the females on the Court ruled with the majority in its 6-3 ruling. Similarly, in Goodridge, two of the three women on the court ruled with the majority in its 4-3 decision. Indeed, both decisions contained opinions written by female judges finding in favor of the gay plaintiffs on their equal protection claims. This Note invites readers to consider whether these decisions stand as evidence of a broader trend. If one were to test for a correlation between gender and legal conclusions on gay rights in federal and state judicial decisions using statistical analysis, would one exist? This is my primary research question.

There are two principal academic universes in which I situate this research question and related findings: (1)judiciary-specific research on the effects of the diversification of American courts, and (2) public opinion research on "gender gaps" in mass public opinion on political questions. Less directly, my research also has implications for work on the relative importance of "substantive" and "descriptive" representation, as well as the link between elite and mass public opinion. The commonalities of these fields may not be readily apparent. Yet, as the Parts of this Note unfold, readers will likely see the extent to which my research is germane to each of these arenas.

Gender diversification of American courts. For the vast majority of the United States's history, its judiciary was predominantly--if not exclusively--white and male. (8) Only thirty years ago did law schools begin to admit women in meaningful numbers. (9) A quarter-century ago, the courts started to reflect this change. President Carter appointed eleven women to the federal appellate courts, and President Reagan continued the trend, even appointing the first woman in history to serve on the U.S. Supreme Court--Sandra Day O'Connor. (10) These changes motivated sociologists, political scientists, and gender theorists to investigate their effects.

When scholars first began to analyze the role of gender in the judicial branch about twenty-five years ago, many expected that there would be statistical differences in the way judges ruled. (11) As females first appeared on the federal bench in the late 1970s, one social scientist boldly asserted that "common sense as well as sociological theory suggests that socialization experiences of men and women are significantly different," and that these differences would likely find a home in federal judicial decisions. (12) Other social scientists generated studies that undermined the notion that female judges would be more "liberal" than nonliberal judges. (13)

Alongside the work of sociologists and political scientists sits work done by feminist legal theorists, who have offered a more nuanced approach to studying gender in the federal judiciary than the binary liberal versus conservative paradigm. (14) They have explained that not all "liberal" issues or "conservative" issues are gendered, and instead have hypothesized that when legal questions allow female judges to create a more inclusive American community, they will do so more often than their male counterparts. (15)

Donald Songer, Sue Davis, and Susan Haire tested the above hypothesis from feminist legal theory in their insightful work A Reappraisal of Diversification in Federal Courts: Gender Effects in the Court of Appeals. They found that when one controlled for relevant factors such as political affiliation, there were not significant differences in the way men and women on federal appellate courts ruled in two areas--obscenity and criminal search and seizure--but that there were gender differences in the way judges ruled in sex discrimination cases. (16) Yet, there were three limitations to Songer et al.'s scope and methodology, some of which create complications for their findings.

First, on the issue of scope, it is important to consider that pornography and criminal search and seizure issues are not the areas that receive the most attention and discussion in the public sphere. There are other issues that are far more prevalent in political discourse and that plausibly play a larger role in the gender socialization process. (17) For example, percentage divisions materialize between men and women when one explores issues such as gay rights and the appropriate scope of government services. (18) Thus, while the issues Songer et al. chose to explore were useful for answering the limited questions they posed, (19) these issues are not predictive in determining whether the political gender divisions that appear in public opinion data operate in the American court system as well. Further, tangentially related to the scope issue is the question of how many of the "discrimination" cases that served as the object of their analysis were actually legal challenges to affirmative action laws. Without this information about the fact patterns in the cases they examined, one cannot reach a conclusion about the extent to which men and women have different judicial attitudes toward questions of inclusion.

Second, Songer et al. excluded from analysis all cases in which female judges issued an opinion concurring in part and dissenting in part. (20) Methodologically, this creates major complications and limitations. The decisions in which judges issue nuanced decisions are likely to be the ones that are most important to include in a discussion about the role of gender in federal judicial decisions. This is because the mere fact that there are multiple opinions arising from the same case means that multiple possible judicial interpretations exist. And indeed, it is precisely when there are multiple interpretations of the same issue that one would expect sociological factors such as gender or race to be most relevant.

Third, also on the methodological front, the researchers' decision to look solely at the federal courts of appeals creates sample size considerations. The study looked at the federal circuit courts between 1981 and 1990; during that time eighteen women served on the federal appellate bench. (21) Alternatively, the authors could have created a larger, more rigorous sample by including more appellate courts (such as state supreme courts. Further research could prove even more fruitful today--eleven years later--because a stronger sample would emerge from looking at post-1990 cases.

This Note complements the work of Songer et al. and others who have studied gender in the American appellate judiciary by refocusing the analytical scope and using more exacting methodology than has been previously employed. I focus on an increasingly prevalent legal issue: gay rights. This Note answers more than the broad question of how often male and female judges who addressed these issues found that statutes violated gays' constitutional rights. (22) I also subdivide these issues when practical and relevant. By "subdivide," I mean that I control for differences in the legal doctrines employed in the cases. For example, this approach would acknowledge the difference between a judge striking down a sodomy statute on equal protection grounds and a judge ruling that gay Americans have a First Amendment right to form an organization.

In addition to the shifted scope, my methodology differs from previous work. By including cases from a wide range of jurisdictions during the time period of 1983-2003, this analysis not only employs a strong sample size, but also controls for factors such as region, method of judicial selection, (23) and political party. (24) This Note also controls for age and time served on the judiciary--factors that were more difficult to control for thirteen years ago when the courts were more homogeneous.

Gender gaps in mass political public opinion. In the early 1980s, scholars first made note of the now proverbial "gender gap," a reference to differences in men and women's attitudes on key political questions. Observers unearthed this emerging gap by noting that men and women's presidential voting patterns significantly diverged in 1980, with women being more likely to vote for the...