Speak Now: Marriage Equality on Trial

by Kenji Yoshino

Overview

A renowned legal scholar tells the definitive story of Hollingsworth v. Perry, the trial that stands as the most potent argument for marriage equality

Speak Now tells the story of a watershed trial that unfolded over twelve tense days in California in 2010. A trial that legalized same-sex marriage in our most populous state. A trial that interrogated the nature of marriage, the political status of gays and lesbians, the ideal circumstances for raising children, and the ability of direct democracy to protect fundamental rights. A trial that stands as the most potent argument for marriage equality this nation has ever seen.

In telling the story of Hollingsworth v. Perry, the groundbreaking federal lawsuit against Proposition 8, Kenji Yoshino has also written a paean to the vanishing civil trial--an oasis of rationality in what is often a decidedly uncivil debate. Above all, this book is a work of deep humanity, in which Yoshino brings abstract legal arguments to life by sharing his own story of finding love, marrying, and having children as a gay man.

Intellectually rigorous and profoundly compassionate, Speak Now is the definitive account of a landmark civil-rights trial.

— Winner, Stonewall Book Award

Product Details

ISBN-13:	9780385348812
Publisher:	Crown Publishing Group
Publication date:	04/21/2015
Sold by:	Random House
Format:	eBook
Pages:	400
File size:	1 MB

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?

Editorial Reviews

Speak Now is a hybrid—mostly an astute exegesis of the Perry trial, with Yoshino's "personal reactions" laced in, and also a tenderhearted memoir. It's an expression of gratitude for his own growth, from a troubled young man for whom "common milestones—falling in love, marrying, raising children—seemed unattainable," into a happily married father of two as a result of remarkable changes in the law beginning in 2003…Speak Now is well worth reading as a piece of advocacy by a gifted scholar. It's a friend-of-the-court brief meant for the global court of public opinion…

The New York Times Book Review - Lincoln Caplan

A Boston Globe Best Book of 2015
Winner of the 2016 ABA Silver Gavel Award for Books

“A valuable contribution….Above all, Yoshino both illuminates and lauds the trial, the ‘truth-finding mechanism’ that puts claims of social convention, distinctions between groups and academic expertise to the test of the adversarial process.” 
—SAN FRANCISCO CHRONICLE

"An astute exegesis of the Perry trial [and] a tenderhearted memoir...Lucid, subtle and illuminating...A friend-of-the-court brief meant for the global court of public opinion."
—NEW YORK TIMES BOOK REVIEW

"Stirring...Yoshino writes elegantly and compellingly about the background and lead-up to the case...A story that's both timely and durable."
—BOSTON GLOBE

“Precision and compassion are frequently opposed, but Kenji Yoshino writes with almost fanatical clarity about the vulnerabilities of the human heart.  His hard-won ability to imbue intellectual conundrums with moral certainty, his meticulous reporting on legal mechanisms and procedures, and his willingness to acknowledge his personal interest in Perry without indulging it to boost his arguments are all signs of his penetrating mind and dignified spirit. His exquisite restraint and quiet eloquence imbue this book, which is as much a triumph of poetry as it is of legal reasoning.”  
—ANDREW SOLOMON, author of Far from the Tree
 
“Kenji Yoshino combines, in a breathtakingly beautiful way, the personal and legal aspects of the battle for marriage equality. The result is a poignant and powerful book that triumphs both as a human drama and a celebration of the judicial process. By the end, I had tears in my eyes.”           
—WALTER ISAACSON, author of The Innovators
 
“Speak Now is a beautifully and scrupulously written account of why facts matter, why trials matter, and why courts are well situated to unearth complex truths. It’s also a story of why love matters and how the law – at its best – makes love visible to the rest of us."
—DAHLIA LITHWICK, legal correspondent, Slate
 
“Kenji Yoshino’s Speak Now proves anew that marriage is that sacred place where love meets law. This glorious human rights story, elegantly recounted by one whose own life has been transformed, should change forever the global conversation about the real meaning of same-sex marriage.”
—HAROLD HONGJU KOH, Sterling Professor of International Law, Yale Law School
 
“In this marvelously intricate tale of ‘two civil ceremonies’—a marriage and a trial—Kenji Yoshino offers brilliant insights into the ways a well-run civil trial can serve as an engine of cultural awakening.”
—LAURENCE TRIBE, Carl M. Loeb University Professor, Harvard University
 
“Not only a compelling and deeply felt account of the first federal same-sex marriage trial, Speak Now is a rich courtroom drama that attests to the transformative power of law.” 
—LINDA GREENHOUSE, Joseph Goldstein Lecturer in Law, Yale Law School; New York Times contributing writer
 
“Beautifully crafted…A celebration of the power of the adversarial system, at its best, to distinguish fact from bombast. In Kenji Yoshino Hollingsworth v. Perry has found its ideal chronicler.”
—ANTHONY APPIAH, author of The Honor Code; Professor of Philosophy and Law, New York University
 
“Speak Now shows how trial courts are uniquely well positioned to evaluate the truth or falsehood of ‘legislative facts’—broad empirical propositions that are often politically contested—in ways that can advance equality and liberty. ‘Let there be a trial,’ Yoshino concludes, and by vividly describing the gay rights trial of the new century, he has created a gripping and memorable constitutional narrative.”
—JEFFREY ROSEN, President & CEO, National Constitution Center; Professor of Law, George Washington University Law School
 
"The beauty and elegance of Yoshino's writing about law at times stops you short. There will likely be no more important trial about same-sex marriage than Hollingsworth v. Perry and there will likely be no more important book about that trial than this one.”
—DALE CARPENTER, author of Flagrant Conduct; Earl R. Larson Professor of Civil Rights & Civil Liberties Law, University of Minnesota Law School
 
“Kenji Yoshino seamlessly weaves together the story of the landmark litigation over same-sex marriage in California, incisive insights about the power of trials, and personal reflections about his own marriage and parenting. The result is a captivating introduction to the issues of fact, law, and meaning surrounding marriage equality.”
—MARTHA MINOW, Morgan and Helen Chu Dean and Professor, Harvard Law School
 
 “Eloquent, lucid, and profoundly moving…Yoshino demonstrates how the careful and respectful procedures of the courtroom can separate fact from prejudice, and perhaps even allow the distilled light of reality to mend passionate social divisions. He has written a compelling tale for our zealous and polarized times.”
—ROBERT POST, Dean and Sol & Lillian Professor of Law, Yale Law School

“Speak Now is a book every law student should read…It does for civil litigation and equal protection what Gideon's Trumpet did for criminal adjudication and the right to counsel: marrying a gripping case study with a broader understanding of how law develops.”
—PAM KARLAN, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School
 
“Speak Now is a uniquely thoughtful account of one of the most important legal trials of our generation, from someone who truly understands the movement for equality. Part history lesson, part personal narrative, part analysis—all from a brilliant legal mind.”
—RICHARD SOCARIDES, former Senior Adviser to President Bill Clinton
 
 “A stirring paean to the critical role of the rule of law—and the beauty of reason—in the cause of justice.”
—LINDA HIRSHMAN, author of Victory: The Triumphant Gay Revolution

“Yoshino has long been an astute observer-participant at the intersection of law and LGBT experience…He skillfully weaves his family’s experience fighting for legal recognition with an account of the [Perry] lawsuit from inception to Supreme Court ruling [and] masterfully guides lay readers through the intricate legal landscape…Yoshino’s passionate and forceful prose is, as always, a delight to read.”
—LIBRARY JOURNAL, starred review

“A crisp, shrewd analysis of Hollingsworth v. Perry...Yoshino claims that he was riveted by the 3,000-page trial transcript; his cogent, incisive narrative is equally captivating.”
—KIRKUS REVIEWS

From the Publisher

★ 04/01/2015
Yoshino (constitutional law, Columbia Univ.) has long been an astute observer-participant at the intersection of law and LGBT experience. His influential Covering documented the precarious socioeconomic and legal position of those who fail to mute the aspects of themselves marked as different. Here Yoshino returns to the interconnection of law and culture by focusing on the Hollingsworth v. Perry (2013) civil court trial which illuminated the arguments for and against legal recognition of same-sex marriages. He skillfully weaves his family's experience fighting for legal recognition with an account of the Hollingsworth lawsuit from inception to Supreme Court ruling. Drawing on the extensive legal documentation as well as interviews conducted with most of the key players, Yoshino masterfully guides lay readers through the intricate legal landscape, arguing that District Court Judge Vaughn Walker's decision to hold a full-court trial offered a unique opportunity for Americans to hear arguments for and against same-sex marriage subject to rigorous cross-examination. Yoshino's passionate and forceful prose is, as always, a delight to read. VERDICT Required reading for anyone who cares about the power of law, in particular civil trials, to expand civil rights and shape public opinion in the United States.—Anna J. Clutterbuck-Cook, Massachusetts Historical Soc. Lib., Boston

Library Journal

2015-01-28
The story of a crucial trial to legitimize same-sex marriage. As in his earlier book on civil rights, Covering (2006), legal scholar Yoshino (Constitutional Law/New York Univ. School of Law; A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice, 2011, etc.) interweaves autobiography into a crisp, shrewd analysis of Hollingsworth v. Perry, the 12-day federal trial that considered California's Proposition 8 banning same-sex marriage. A gay Asian-American, Yoshino married in 2009 as the suit was filed in California, and he and his husband became parents of a daughter and son during the four years of litigation. Centered on issues of love, commitment and family, the trial had personal as well as political and professional meaning for him. Its transcript, he writes, "captured the best conversation I had seen on same-sex marriage—better than any legislative hearing, any academic debate, or any media exchange." The transcript contained intellectually rigorous arguments, pointed cross-examination of witnesses' claims and allegations, and intense focus on points of law. Trials about gay rights issues, as one judge noted, were educational experiences that offered "an excellent opportunity to replace ignorance with knowledge." In the Prop 8 case, Judge Vaughn Walker insisted on moving quickly to trial; he also wanted the proceedings streamed live to federal courthouses and posted on YouTube—both of which were blocked by the Supreme Court. The plaintiffs were represented by Ted Olson and David Boies, who had argued against each other in Bush v. Gore. The "inspired" pairing of the two savvy strategists, the author contends, "symbolically reunited the two halves of the country." Besides chronicling testimony by experts and witnesses, Yoshino clearly explains relevant legal terms and identifies the three rationales that ultimately became prominent in the case: "optimal child rearing, the prevention of the dissolution of marriage, and the suppression of irresponsible procreation." Yoshino claims that he was riveted by the 3,000-page trial transcript; his cogent, incisive narrative is equally captivating.

Kirkus Reviews