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Marie-Amélie George, The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents, 34 Law & Hist. Rev. 487 (2016), available at SSRN.

Marie-Amélie George’s meticulously researched, provocative study of early gay-and-lesbian custody cases focuses on the power of social science research to reshape both the law and the larger society. George takes us inside the courtroom fights, landmark parenting studies, and conservative strategies that have defined debates about the meaning and origins of homosexuality. Using published opinions, rare trial records, oral histories, personal correspondence, and social-movement records, The Custody Crucible describes how social-science arguments made the difference to gay and lesbian parents seeking to prove that their sexual orientation in no way harmed their children.

But the relationship between scientific research and litigation that George excavates is complex. She convincingly argues that courtroom battles sparked new research about the impact of gay or lesbian parenting on the sexual orientation and gender identity of children. As importantly, the progress made by gay and lesbian parents helped set the agenda of conservative organizations intent on demonstrating that homosexual parents were often sexually abusive, impoverished, and unable to stop their children from becoming deviant. Nuanced and thoughtful, The Custody Crucible contributes to a rich literature on the relationship between cause-lawyering and social change. However, George breaks out of the framework often governing these studies, looking beyond the overall benefit a movement can expect from winning or losing in court. The Custody Crucible illuminates how litigation can help frame scientific questions that resonate well beyond the courtroom.

George begins with a comprehensive survey of available gay-and-lesbian custody cases decided between the 1970s and 1990s. Her research challenges the narrative of growing tolerance of homosexuality often told in histories of sexual orientation. Indeed, she suggests that regional and ideological differences among states played a definitive role for more than a decade. While acknowledging the limits of the remaining evidence, George compellingly argues that courts became more receptive to the demands of gay and lesbian parents only in certain places and only in response to an emerging body of scientific research on child development.

As George argues, the social-science research that would transform attitudes toward homosexuality developed partly in response to a shift in custody doctrine in state courts. Gradually abandoning the assumption that gay or lesbian parents were necessarily unfit, many jurisdictions in the 1970s began moving toward the so-called nexus approach, asking whether a child suffered any harm as a result of her parents’ sexual orientation. While interpretations of the new requirement varied widely, it opened the door to different scientific strategies. In particular, throughout the period George studies, courts remained preoccupied with the idea that children raised in a gay-friendly environment would become gay, lesbian, or transgender themselves. Under pressure because of this new approach, gay-rights organizations developed a roster of expert witnesses willing to testify that the children of gay and lesbian parents were no more likely to become homosexual than anyone else.

The nexus test also inspired scientific researchers convinced that they could put an end to the uncertainty surrounding gay-and-lesbian parenting. Legal issues—the best interests of the child and the prospect of harm to children—shaped the questions researchers asked and the length and timing of their studies. Scholars consistently maintained that having gay and lesbian parents made no difference to their children’s sexual development. As this body of work grew, many parents saw their chances in court improve substantially, particularly on the East and West Coasts.

However hopeful George’s story appears at first, the flourishing of social-science research on sexual orientation was not without its dark side. To begin with, some courts ignored the emerging work on sexual orientation, seeing custody as a matter of morals rather than social science. Even when courts legitimized pro-gay parenting studies, case law and research inadvertently reinforced the conclusion that homosexuality was the kind of harm that should be avoided at all costs.

Nor, as George shows, did the receptiveness of some courts cut short scientific battles about homosexuality and child-rearing. She recaptures the tactics of conservative researchers, legal academics, and lawyers who recommitted to preserving the status quo challenged by gay and lesbian parents. At first, conservatives worked primarily outside the courts, never fully immersing themselves in the custody cases that continued to unfold across the country. It was not until the 1990s that conservative groups meaningfully intervened in litigation, participating in co-parent cases that conservatives feared would undermine the traditional definition of the family. Nevertheless, George reveals the influence of anti-gay researchers like George Rekers, Paul Cameron, and Joseph Nicolosi on subsequent battles about the treatment of AIDS victims and the justification for discrimination against gays and lesbians across legal domains.

The Custody Crucible makes an important contribution to a growing tradition of legal and historical studies that focus not only on social movements’ reliance on law but also on the intersection between legal outcomes and scientific research. George’s piece sheds light on these issues at a time when they are becoming more politically and legally urgent. Scientific questions about the impact of global warming define national elections and legal disputes. In the aftermath of the Supreme Court’s last major abortion decision, research on everything from fetal pain to the risks of later abortions is becoming more common, well-funded, and legally crucial. The history that George preserves reminds us how much litigation may revolutionize these scientific debates and tells us that what is at stake may be neither as predictable nor as promising as we now believe.

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Cite as: Mary Ziegler, The Science of Sexuality, JOTWELL (March 31, 2017) (reviewing Marie-Amélie George, The Custody Crucible: The Development of Scientific Authority About Gay and Lesbian Parents, 34 Law & Hist. Rev. 487 (2016), available at SSRN),