Gratuitous language in appellate cases involving gay people: “Queer bating” from the bench

An examination of appellate cases—state and federal—where homosexual behavior is under judicial scrutiny suggests that gay litigants are frequently the targets of gratuitous asides. Such language takes various forms. It also occurs with varying frequency depending on the type of case (criminal, employment discrimination, immigration and naturalization, licensing and incorporation, marriage, or child custody) under examination. The incidence of such language also varies with the level of the court involved (state vs. federal), and it also varies temporally, showing a general decline with the advance of time. The presence of such language is employed as an indicator of the legitimacy accorded gay litigants in the courtroom. Within this context, the impact and efficacy of litigation on behalf of gay people is also assessed.