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

Notes

199 Notes Notes to Chapter 1 1. In re Parentage of A.B., 818 N.E.2d 126 (2004). 2. Ex Parte H.H. 830 So.2d 21, 26 (2002). 3. Lawrence v Texas, 539 U.S. 558 (2003); Lofton v Florida, 543 U.S. 1081 (2005). 4. Interview #29, transcript page 4. 5. McGuffin v Overton, 542 N.W.2d 288 (1995); Matter of Guardianship of Astonn H., 635 N.Y.S.2d 418 (1995). Although these cases were heard in different states (Michigan and New York, respectively), there were no specific independent differences in the settled law in each state that would account for the different outcomes. 6. Critical legal scholar Mark Tushnet has defined indeterminacy this way: “a proposition of law (or legal proposition) is indeterminate if the materials of legal analysis—the accepted sources of law and the accepted methods of working with those sources such as deduction and analogy—are insufficient to resolve the question, ‘Is this proposition or its denial a correct statement of the law?’” In other words, indeterminacy refers to the inability to predict a rational path that the law will take, based on the set of rules and circumstances present. Mark Tushnet, “Defending the Indeterminacy Thesis,” Quinnipiac Law Review 16 (1996): 339, 341. 7. Indeed, recent studies have confirmed that this is so. In his study of federal judges’ demographic attributes and their votes in LGBT rights cases, political scientist Daniel Pinello found significant differences by race, gender, religion, and age, as well as support for the notion that the majority of judges deciding these cases are of traditional majority demographic categories (Caucasian, male, age fifty and over). See Daniel Pinello, Gay Rights and American Law (Cambridge : Cambridge University Press, 2003). 8. Lochner v New York, 198 U.S. 45 (1905); Muller v Oregon, 208 U.S. 412 (1908). 9. Stephan Landsman and Richard F. Rakos, “A Preliminary Inquiry into the Effect of Potentially Biasing Information on Judges and Jurors in Civil Litigation ,” Behavioral Sciences and the Law 12 (1994): 113–126. 200 | Notes to Chapter 1 10. Sheila D. Ards, William A. Darity Jr., and Samuel L. Myers Jr., “‘If It Shall Seem Just and Proper’: The Effect of Race and Morals on Alimony and Child Support Appeals in the District of Columbia, 1950–1980,” Journal of Family History 23, no. 4 (1998): 441–475. 11. See, for example, Frances Olsen, “The Sex of Law,” in The Politics of Law: A Progressive Critique, 3rd ed., ed. David Kairys (New York: Basic Books, 1998). 12. Katharine Bartlett, “Feminist Legal Methods,” in Feminist Legal Theory: Foundations, ed. D. Kelly Weisberg (Philadelphia: Temple University Press, 1993), 553. 13. Stephen Parker, “The Best Interests of the Child: Principles and Problems ,” in The Best Interests of the Child: Reconciling Culture and Human Rights, ed. Philip Alston (Oxford, UK: Clarendon, 1994), 35. Other works that have critiqued the best-interest standard as excessively vague are Andrea Charlow , “Awarding Custody: The Best Interests of the Child and Other Fictions,” in Child, Parent, and State: Law and Policy, ed. S. Randall Humm, Beate Anna Ort, Martin Mazen Anbari, Wendy S. Lader, and William Scott Biel (Philadelphia: Temple University Press, 1994); and Martin Guggenheim, “The Best Interest of the Child: Much Ado about Nothing?” in Humm et al., Child, Parent, and State. 14. Kathryn L. Mercer, “A Content Analysis of Judicial Decision-Making— How Judges Use the Primary Caretaker Standard to Make a Custody Determination ,” William and Mary Journal of Women and the Law 5 (1998): 1–149, 67. 15. Timothy E. Lin, “Social Norms and Judicial Decisionmaking: Examining the Role of Narratives in Same-Sex Adoption Cases,” Columbia Law Review 99 (1999): 739–794. 16. See M.A.B. v R.B., 510 N.Y.S.2d 960 (1986). 17. This presumption, commonly called the “per se” standard, is discussed in more detail in chapter 2. 18. C. Herman Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values, 1937–1947 (Chicago: Quadrangle Books, 1969), 47. 19. James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (New York: Cambridge University Press, 1995), 103–104. 20. See Michael McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago: University of Chicago Press, 1994), 285. 21. Ibid. 22. Tushnet, “Defending the Indeterminacy Thesis,” 340. 23. Interview #24, transcript page 8. 24. The use of quotation marks around the term “judicial activism” is deliberate, for two reasons. First, different people and different disciplines have varying...