Gay Rights and American Law

by Daniel R. Pinello

• ISBN13: 9780521812740
• ISBN10: 0521812747
• Format: Hardcover
• Copyright: 2003-06-09
• Publisher: Cambridge University Press

Summary

Gay Rights and American Law investigates how American appellate courts dealt with the struggle for lesbian and gay civil rights during the last two decades of the twentieth century. The study is grounded on an exhaustive database of both federal and state cases, rendered between 1981 and 2000, and of the personal attributes of the judges who decided them, as well as the ideological, institutional, and legal environments in which the decisions were situated. The work both explains how diverse factors influenced the adjudication of civil rights claims during a vital era of the homosexual civil rights movement and formulates promising methodologies for the meaningful quantitative empirical study of law.

Table of Contents

List of Tables	xi
Acknowledgments	xiii
Introduction	1	(16)
The Context of the Study	2	(5)
The Cases	7	(2)
Case Outcome Variation by Court System and Subject Matter	9	(1)
Geographic Variation	10	(2)
Temporal Variation	12	(5)
Case Narratives	17	(55)
Child Custody, Visitation, Adoption, and Foster Care	17	(17)
Lesbian and Gay Family Issues Not Involving CVAF	34	(8)
Cases Adjudicating Sexual Orientation Discrimination Claims Not Related to Lesbian and Gay Family Issues	42	(11)
Gays in the Military	53	(1)
Cases Adjudicating the Constitutionality of Consensual Sodomy and Related Solicitation Statutes and Their Enforcement Against Gay People	54	(3)
Cases Adjudicating the Free Speech and Free Association Rights of Lesbians and Gay Men	57	(6)
Miscellaneous Cases Essential to Lesbian and Gay Rights	63	(5)
Same-Sex Sexual Harassment	68	(1)
Defamation Involving Homosexuality	69	(1)
Miscellaneous Cases Not Essential to Lesbian and Gay Rights	70	(1)
Conclusion	70	(2)
The Lesbian and Gay Rights Claims Models	72	(33)
The Statistical Analysis	76	(1)
Findings	77	(16)
Applying the Models	93	(5)
Answers to Questions Posed in Chapter 2	98	(2)
Model Performance	100	(4)
Conclusion	104	(1)
Judicial Federalism and the ``Myth of Parity''	105	(13)
Judicial Federalism Variables	109	(1)
Findings	110	(6)
Conclusion	116	(2)
A Test of Stare Decisis	118	(26)
The Legal Literature	119	(2)
The Political Science Literature	121	(6)
Lesbian and Gay Rights Claims and Precedent	127	(5)
Test One	132	(2)
Test Two	134	(7)
Caveats	141	(1)
Conclusion	142	(2)
Conclusion	144	(171)
Location, Location, Location	144	(1)
The Promise of the States	145	(1)
The Value of Diversity on the Bench	146	(4)
Time Is on Our Side, Yes It Is!	150	(1)
The Vital Role of Interest Groups	150	(1)
The Power of Precedent	150	(1)
Democrats, Republicans, and Gay Rights	151	(2)
Reprise	153	(1)
The Forces Motivating Judicial Decision Making	154	(1)
The Quantitative Study of Rights of Law	155	(7)
Epilogue	162	(153)
Appendix 1.1 How Court Decisions Were Identified	163	(4)
Appendix 1.2 Federal and State Appellate Cases Adjudicating Lesbian and Gay Rights Claims, 1981-2000	167	(19)
Appendix 2.1 Cases Adjudicating Lesbian and Gay Family Issues, 1981-2000	186	(10)
Appendix 2.2 Cases Adjudicating Sexual Orientation Discrimination Claims Not Related to Lesbian and Gay Family Issues, 1981-2000	196	(4)
Appendix 2.3 Cases of Gays in the Military, 1981-2000	200	(2)
Appendix 2.4 Cases Adjudicating the Constitutionality of Consensual Sodomy and Related Solicitation Statutes and Their Enforcement Against Gay People, 1981-2000	202	(2)
Appendix 2.5 Cases Adjudicating the Free Speech and Free Association Rights of Lesbians and Gay Men, 1981-2000	204	(2)
Appendix 2.6 Miscellaneous Cases Essential to Lesbian and Gay Rights, 1981-2000	206	(2)
Appendix 2.7 Cases Adjudicating Same-Sex Sexual Harassment Claims, 1981-2000	208	(2)
Appendix 2.8 Defamation Cases Involving Issues of Homosexuality, 1981-2000	210	(2)
Appendix 2.9 Miscellaneous Cases Not Essential to Lesbian and Gay Rights, 1981-2000	212	(2)
Appendix 3.1 Further Data Collection, Indepedent Variables, and Statistical Technique	214	(12)
Appendix 3.2 Sample Cover Letter Accompanying Self-Administered Questionnaire	226	(1)
Appendix 3.3 Self-Administered Questionnaire Sent to Judge	227	(2)
Appendix 3.4 Variable Coding	229	(4)
Appendix 3.5 Logistic Regression Statistics for Votes in All Essential Decisions	233	(3)
Appendix 3.6 Logistic Regression Statistics for Votes in Courts of Last Resort	236	(3)
Appendix 3.7 Logistic Regression Statistics for Votes in Intermediate Appellate Courts	239	(3)
Appendix 3.8 Logistic Regression Statistics for Votes in Family Cases	242	(3)
Appendix 3.9 Logistic Regression Statistics for Votes in Nonfamily Cases	245	(3)
Appendix 3.10 Logistic Regression Statistics for Votes in Custody, Visitation, Adoption, and Foster Care Cases	248	(2)
Appendix 3.11 Logistic Regression Statistics for Votes of Opinion Writers	250	(3)
Appendix 3.12 Bias Arising from Incomplete Data	253	(2)
Appendix 3.13 Logistic Regression Statistics for a Reduced Model of the Book's Subset of All Votes in All Essential Decisions	255	(2)
Appendix 3.14 Logistic Regression Statistics for a Reduced Model of All Votes in All Essential Decisions	257	(2)
Summary Statistics for Appendixes 3.5-3.14	259	(8)
Appendix 4.1 Judicial Federalism Variable Coding	267	(1)
Appendix 4.2 Appellate Cases Adjudicating Constitutional Issues	268	(7)
Appendix 4.3 Logistic Regression Statistics for All Votes (with Judicial Federalism Variables)	275	(3)
Appendix 4.4 Logistic Regression Statistics for Votes in Federal Constitutional Decisions	278	(3)
Appendix 4.5 Logistic Regression Statistics for Votes in Federal and State Constitutional Decisions	281	(3)
Appendix 4.6 Logistic Regression Statistics for Votes in Courts of Last Resort (with Judicial Federalism Variables)	284	(3)
Appendix 4.7 Logistic Regression Statistics for Votes in Intermediate Appellate Courts (with Judicial Federalism Variables)	287	(3)
Appendix 4.8 Logistic Regression Statistics for Votes in Federal Court Decisions (with Judicial Federalism Variables)	290	(2)
Appendix 4.9 Logistic Regression Statistics for Votes in State Courts Decisions (with Judicial Federalism Variables)	292	(3)
Summary Statistics for Appendixes 4.3-4.9	295	(6)
Appendix 5.1 Precedential Variable Coding for Intermediate Appellate Courts	301	(2)
Appendix 5.2 Cases Decided Under the Influence of Controlling Precedent	303	(8)
Appendix 5.3 Logistic Regression Statistics for Votes in Intermediate Appellate Courts (with Expanded Stare Decisis Variables)	311	(3)
Summary Statistics for Appendix 5.3	314	(1)
References	315	(18)
Author Index	333	(5)
Case Index	338	(3)
Subject Index	341