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

5. Talking Back Judicial Dissents and Social Change

123 5 Talking Back Judicial Dissents and Social Change [D]issenting opinions may be the symptom of life in the law of time. —Roscoe Pound1 A dissent . . . is an appeal to the brooding spirit of the law, to the intelligence of a future day. —Charles Evan Hughes2 How do most people come to understand what the law is and what it says? Certainly not by researching decisions handed down by appellate courts or by delving into the family code or penal code. The recent spate of sociolegal scholarship focused on narratives and storytelling , especially in everyday language and experience, adds a new twist on traditional legal analysis by decentering the privilege of official discourse, such as case law.3 Rather than relying on the “law in the books,” such scholarship focuses on both the “hegemonic tales” and the “subversive stories” of regular citizens interacting with the law.4 This might mean, for instance, exploring ways in which people enact the veneer of legality outside the bounds of formal legal recognition, by taking part in samesex marriage rituals where such unions are not legally sanctioned or by constructing a family not bound by blood or marriage but still using the official terminology, such as “brother-in-law.”5 The point is that a complete analysis of the role of law in the social world, and vice versa, must focus not just on judges’ and legislators’ interpretations of the law but also on ordinary peoples’ understandings of the law in action 124 | Talking Back and in their day-to-day lives, which may contradict, resist, or subvert the “official” understanding of law. Normally one would look outside institutional legal sources to find these oppositional stories. Yet, unlikely though it may seem, they are also found in the official language itself— there, it is called “dissent.” In this chapter, I investigate the role of dissenting opinions in the development of judicial narratives and in the flux in meaning attached to gay and lesbian families over time.6 As institutionalized and readable proof of the flux and unsettled nature of law, it is not surprising that dissents might play a role, or at least be present, in cases dealing with gay and lesbian rights and the changing family form, one of the most contentious social issues of our time.7 Given the public disagreement as to the legal position of gay- and lesbian-headed families, it seems only natural that this dissention would be manifested in judicial records as well—and it is, in the form of widely varying majority and dissenting opinions in appellate cases involving such families. Not only do dissents reflect the flux, instability, and eventual change of gay and lesbian family law, but in certain instances, they may actually play a role in catalyzing that change by affecting majority opinions and the future of family law in this ever-changing area. The Relevance of Dissent in LGBT Family Law The custom of writing and recording dissenting opinions in appellate courts, when appraised objectively, would seem to be an odd convention in law. This practice might be compared to a professor “trashing” all of his or her own concepts and arguments at the end of a class—it is, at the least, counterintuitive and, at most perhaps, counterproductive.8 Yet so poignant and deeply felt are the dissents in some cases that, on occasion, the minority opinion is the only one published, as in the Georgia parental -visitation case of In re R.E.W.9 In some cases, the dissent is actually longer than the majority opinion. In the Vermont divorce case of Nickerson v Nickerson, the dissent is twice the length of the majority decision.10 In Schuster v Schuster, the two dissents written account for over twothirds of the length of the record of the case. In the 1999 Connecticut Supreme Court case of In re Adoption of Baby Z., in which the majority declined to allow the second-parent adoption, as discussed in chapter 3, one judge wrote a forty-page dissent, which, among other things, listed the twenty-four amicus curiae briefs that had been submitted but Talking Back | 125 were never mentioned by the majority and gave a detailed constitutional analysis of why the state’s adoption statute should be construed to allow second-parent adoptions such as the one proposed in the case.11 Moreover, dissents, when read with the majority opinion...