Speak Now: Marriage Equality on Trial

Speak Now: Marriage Equality on Trial

by Kenji Yoshino


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Product Details

ISBN-13: 9780385348805
Publisher: Crown/Archetype
Publication date: 04/21/2015
Pages: 384
Product dimensions: 6.30(w) x 9.40(h) x 1.70(d)

About the Author

Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law.  A graduate of Yale Law School, where he taught from 1998 to 2008, he is the author of Covering: The Hidden Assault on Our Civil Rights and A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice. Yoshino's writing has appeared in the Los Angeles Times, the New York Times, and the Washington Post. He lives in New York with his husband and two children.

Table of Contents

Introduction: Embraced by Law 1

Part I Before

1 The Plaintiffs 15

2 The Movement Lawyers 34

3 The Proponents 51

4 Getting to Trial 65

Part II The Trial

5 Curtain Up 91

6 The Right to Marry 101

7 A History of Discrimination 118

8 Immutability 133

9 Political Powerlessness 142

10 The Ideal Family 155

11 A Threat to Marriage 173

12 The Bare Desire to Harm 187

13 The Phantom Witnesses 199

Part III After

14 The Trial Court 221

15 The Court of Appeals 235

16 The Supreme Court 249

17 Civil Ceremonies 267

Epilogue: Epithalamium 281

Acknowledgments 286

Perry Trial Chronology 287

Marriage Equality Timeline 291

Notes 313

Index 361

Reading Group Guide

The official book club discussion guide for SPEAK NOW: MARRIAGE EQUALITY ON TRIAL by Kenji Yoshino.

1. Before reading Speak Now, what did you know about the history of marriage equality litigation in this country? What did you learn that surprised you?

2. Yoshino argues that the trial in Perry was “the best conversation” about same-sex marriage he had ever encountered, deeming it more rigorous than “any legislative hearing, any academic debate, or any media exchange”? Do you agree? Why or why not?

3. When Loving v. Virginia was filed, some thirty states had already legalized interracial marriage. When Perry was filed, same-sex marriage was legal in only four states. Would you, like most major gay-rights organizations at the time, have declined to file Perry so soon?

4. At the press conference where Olson and Boies first announced they were filing the Perry lawsuit, they used only the American and California flags as a backdrop. They did not use the rainbow flag associated with the gay-rights movement. What did that decision signal to the media? To the gay-rights groups? Would you have made the same decision?

5. One of the most famous moments in the trial came during the summary judgment hearing, when Judge Walker asked what harms would arise as a result of same-sex marriage and Cooper responded: “I don’t know.” How did Cooper’s answer come back to haunt him? Should it have? How persuasive was Cooper’s argument that those words were taken out of context?

6. Judge Walker originally sought to broadcast the trial online or to other courthouses in California. Why was his request denied? What impact did the controversy over broadcasting the trial have on the rest of the proceedings? When, if ever, should trials be televised?

7. Under Prop 8, same-sex couples retained nearly all the legal benefits of marriage, but the state did not consider their unions “marriage.” Why was the word “marriage” so important to the plaintiffs? Did you agree with Olson that a domestic partnership is a pale alternative to a marriage?

8. The four plaintiffs—Katami, Perry, Stier, and Zarrillo—testified about the daily humiliations they encountered because they could not marry. Why did these incidents bother the plaintiffs so much? Were these “microaggressions” serious enough to warrant litigation?

9. One of the central disagreements between the parties in Perry was the definition of the word “marriage” itself. In what specific, meaningful ways did their definitions differ?

10. In the United States, legislatures are not supposed to enact laws based solely on religious values. However, in states where citizens can enact laws by direct vote, this restriction is extremely difficult to enforce. Do you consider this problematic? What are the advantages and disadvantages of a system like California’s, which makes it very easy to change the constitution?

11. Yoshino traces the “Protect Our Children” theme of the Prop 8 campaign back to Anita Bryant’s anti-gay “Save Our Children” campaign from the 1970s. Why did the supporters of Prop 8 use language that was similar to—yet distinct from—a phrase used in earlier anti-gay campaigns? And how did “Protect Our Children" ultimately flip to become a rallying cry for supporters of same-sex marriage?

12. What does Yoshino mean when he says that Boies and Olson tried to elicit both “narrative compassion” and “statistical compassion”? What are some examples of this strategy during the trial?

13. Though Boies and Olson repeatedly compared Perry to Loving v. Virginia, Yoshino contends that the struggle for gender equality was more crucial to the acceptance of same-sex marriage. What is his reasoning? Do you agree?

14. Yoshino introduces himself early in the book as someone whose own life was transformed by marriage equality. In what ways did the author’s personal story diminish or enhance your trust in him as a narrator? What, if anything, did these personal interludes add to the book?

15. What does marriage mean to you personally? In the future, would you like to live in a world in which more or less social emphasis is placed on marriage?

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