Vol. 13 No. 8 (August 2003)

GAY RIGHTS AND AMERICAN LAW by Daniel R. Pinello.  New York:  Cambridge University Press, 2003.  349 pp.  Cloth $70.00.  ISBN: 0-521-81274-7  Paper $23.00.  ISBN 0-521-0121407.

Reviewed by Frank Cross, McCombs School of Business and University of Texas Law School.  Email: crossf@mail.utexas.edu .

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. 

Copyright 2003 by the author, Frank Cross.