Courting Change: Queer Parents, Judges, and the Transformation of American Family Law (review)

How should we understand an Indiana court's prohibition of the adoption by a gay man of a severely disabled little girl, ordering social services instead to separate her from her brothers and place her in an abusive foster family, when many other states have active programs to encourage foster and adoptive parenting by gay and lesbian adults? What sociological sense ought we to make of a California court's refusal to recognize as a parent a member of a long-term lesbian couple who participated in the planning, conception and rearing of a child, when dozens of other state courts have come to the exact opposite conclusion? In this time when same-sex couples are choosing to jointly conceive, adopt and raise children in every state in the nation and in more than 96 percent of counties (Sears et al. 2005), their relationships are governed by a dense, conflicted and inconsistent web of family law and court decisions. It is this incoherent body of law that forms the data for Kimberly Richman's engaging, and occasionally heartbreaking, study of legal indeterminacy in the past half-century of case law concerning the rights of LGBT parents.

From the Legal Realist tradition in the early 20^th century onward, socio-legal scholars have debated the implications of the inconsistency and irrationality of law. Richman intervenes in these discussions with a novel approach: she views inconsistency as a necessary component of an area of law whose continued relevance depends on its ability to adapt to changes in social organization of family and sexuality.(2) She argues that the dominant "indeterminacy thesis," an empirical and normative critique of law and of formal rationality focused largely on discussions of bias and injustice, actually prevents us from fully exploring the ways "openness" can facilitate social change and provide opportunities for litigants and attorneys to "work" ambiguity in the interest of progress.(6-7) Richman consciously exploits the inconsistencies in the body of appeals court decisions in child custody, adoption or visitation cases involving at least one known LGBT parent — 316 in all — occurring in 1952 through 2004 to demonstrate the transformations of meaning that can occur in the working through of legal norms and concepts.

As sociologist Judith Stacey (1996) notes, major innovations in the structure of family life are rare. The evolution of LGBT family life has caused courts to rethink legal notions of family and sexuality. Early cases focused on breaking down the cultural assumption that "homosexual" and "parent" are mutually exclusive identity categories; newer cases confront demands to untangle the historical conflation of legal and biological parenthood. And all of this poses a poignant challenge to liberal rights paradigms to move from privileging the atomistic rights of individuals towards a framework for the legal recognition of the distinctly relational nature of family bonds.

These innovations are not linear, nor are they always an uncompromising victory for LGBT parents. As legal scholar and author Kenji Yoshino (2006) notes, the law places "covering" demands on LGBT people across contexts, requiring them to mute crucial aspects of their identities to secure collective rights. Nowhere is this more poignantly illustrated than in the cases Richman depicts: of parents required by courts to choose between their children and their same-sex partners, or in its most pernicious forms, to acquiesce to demands that they present themselves as "non-practicing" gays, to disavow political involvement in LGBT issues or communities, or to hide or mask the parts of their own personalities that read too "queer" for the comfort of legal institutions.

In perhaps the least successful portion of the book, Richman theorizes the productive power of judicial dissent. "The minority," she argues, "have a curious concurrent jurisdiction over the future."(127) Dissenting opinions are, in her view, a window into the active negotiations over restructuring meaning systems that occur between judges. They also function symbolically as formal appeal for...