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
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.
