The Authoritative Moment: Exploring the Boundaries of Interpretation in the Recognition of Queer Families
This article examines the boundaries of judicial interpretation as courts struggle to define the families formed by lesbians, gay men and transexuals. It compares the jurisprudence of numerous state courts examining queer families in different contexts. The article identifies three interwoven components of judicial reasoning: "lex" reasoning, grounded in the jurisdiction's binding and persuasive law; factual reasoning in which the courts must categorize queer families as analogous to those the law already recognizes or instead as something quite new and distinct; and finally methodological reasoning, in which courts self-consciously examine the boundaries of their own interpretive authority. Showing that in comparable situations courts can come to radically diverging conclusions simply by focusing their attention on differing strands of the reasoning essential to defining "family" in a queer context, the article concludes that the distinction between "activist" judges expanding law to incorporate LGBT families and "conservative" judges reading extant law narrowly, hence inevitably excluding them, is, at best, illusory.
32 Wm. Mitchell L. Rev. 655 (2005-2006)