Speak Now: Marriage Equality on Trial

by Kenji Yoshino

eISBN 9780385348812

“At their best, trials can be exercises in crystalline argumentation. But they are not only that. They are also human events in which living, breathing protagonists embody the claims they make. There is great virtue in combining, as trials do, authentic human stories with abstract argumentation.”

In November 2008, a ballot initiative in the state of California narrowly approved a constitutional amendment defining marriage as being between one man and one woman. When the government was inevitably sued by same sex couples seeking to marry, the state declined to defend the legislation. The task fell to the proponents of the initiative, while the plaintiffs’ case was taken up by Ted Olson and David Boies, the lawyers who famously faced off in Bush v. Gore only a decade earlier.  As both a legal scholar and a gay man, Kenji Yoshino provides a unique perspective on the trial, following it from the district court in 2010, up to the Ninth Circuit court of appeals, and finally to the Supreme Court of the United States in 2013. In addition to chronicling the case, he contends that Hollingsworth v. Perry is a prime example of the trial as a fact-finding method, and argues that it deserves a significant place in the history of marriage equality litigation despite being generally overshadowed by United States v. Windsor, which was handed down the same day.

Perry was an unusual marriage equality case in that it was not filed by one of the organizations leading the gay rights movement, such as Lambda Legal, or the American Civil Liberties Union. This caused skepticism and concern among marriage equality proponents for a number of reasons, from the timing, to the legal team, to the fees involved. While David Boies had solid liberal credentials, Ted Olson was a notorious conservative litigator, and as such his motivations for taking the case were suspect. And while most civil rights cases are litigated pro bono, this case generated more than $6 million in legal fees. Meanwhile, the movement’s carefully orchestrated strategy deemed it too soon for a federal case, and this was perhaps true, given that SCOTUS eventually ruled that the proponents did not have standing to defend the statute, thereby delaying a fifty state ruling until Obergefell v. Hodges in 2015. However, as Yoshino argues, the door was inarguably open, and someone was going to walk through it.

At the trial court level, people on both sides were nervous about the presiding judge, Vaughn R. Walker. His trial record had earned him a reputation of being anti-gay, but on the other hand, his own homosexuality was something of an open secret. No one spoke about it, but he brought his long-time partner, a doctor, to public events with him. Neither side wanted to make much of an issue of it at the trial level, but when the Supreme Court reinstated Judge Walker’s decision by ruling the proponents of Prop 8 did not have standing, they began to cry foul, arguing that Walker should have recused himself from the case. Walker was also controversial because he sought to broadcast the trial, although this was eventually disallowed. The proponents tried to argue that the prospect of recording and broadcast had intimidated their expert witnesses, leading them to field only two at the trial, although they extensively cross-examined the plaintiff’s witnesses.

Though he clearly favours marriage equality, Yoshino is generally quite fair to the opinions of his opponents. In an effort to untangle the broadcast debacle, he follows up with the withdrawn witnesses for the proponents, trying to ascertain why they withdrew from the trial. While some did indeed cite worries about the broadcast, Yoshino’s examination of the testimony they were supposed to offer shows how unlikely most of it would have been to hold up in court. Indeed, most of the witnesses who withdrew had tanked badly in deposition, withdrawing only after it had already been determined the trial would not be broadcast. On the other side, Yoshino also points out whenever he thinks opponents of Proposition 8 were deliberately misinterpreting the proponents’ views, usually for public relations purposes. And he can afford to be generous, because so few of the claims advanced by the Prop 8 supporters hold up under legal scrutiny.

In his examination of the trial, Yoshino lauds the technique of the plaintiff’s legal team in intermixing personal testimony with expert witnesses, arguing that “the lay witnesses kept the testimony from feeling dry, while the experts kept the testimony free feeling idiosyncratic.” Perhaps utilizing a similar technique, Yoshino mixes in personal anecdotes, often starting or finishing a chapter with a personal touch. At the end of chapter six, he recounts how, although his family had long accepted his relationship, it wasn’t until he and his husband were able to legally marry that his parents presented them with a family heirloom. In recognizing this strength, then, it is interesting that he overlooks an element of Windsor that, aside from the legal precedent, makes it loom so much larger in the public memory than Perry. Edie Windsor and Thea Spyer have an exceptionally compelling story, and one that was adeptly highlighted by Windsor’s trial team. By contrast, Kristin Perry and Sandra Stier, and Paul Katami and Jeff Zarrillo hardly play a role in the book about their case. Though he lauds human stories, Yoshino remains an academic, and his dissection of the case, though well explained, will certainly be more detailed than most of the general public will be interested in reading.

From a legal perspective, Yoshino makes a persuasive argument for the significance of the case, citing numerous lower court decisions that have relied on the precedent. He also argues well for the importance of the fact that it went to trial rather than being decided on summary judgement, which is what both sides initially wanted. In that respect, Speak Now is a paean to the ceremony of the trial that is sometimes overly romantic, even as Yoshino admits he only believes that “for inflamed social controversies, trial may be the least imperfect means of getting at the truth.” Although the outcome is known, and although Perry is often considered anti-climactic, especially along-side Windsor, Yoshino does manage to make it seem riveting, provided you are at least a little bit of a legal nerd.

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