Speak Now: Marriage Equality on Trial

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Speak Now: Marriage Equality on Trial

Kenji Yoshino’s new book pays tribute to the role of a landmark civil trial in upholding marriage equality

by Jonna Louvrier on Wednesday, August 19, 2015 - 12:55pm

Speak NowFor twelve days in 2010, California courts were the scene of a groundbreaking battle to ensure the legal right of every adult in the state to marry the person of her or his choice. “Speak Now: Marriage Equality on Trial,” the latest book from acclaimed author Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law, looks at the fight against Proposition 8, the California ballot proposition and state constitutional amendment that eliminated the right of same-sex couples to marry. Yoshino’s book describes the trial and provides a compelling story about humanity, love and the potential of the legal process to uphold marriage equality. 

From keeping a distance to writing a page-turner

Yoshino was not a central figure in the Hollingsworth v. Perry trial or its preparation, nor did he follow the developments from up close. He consciously kept a distance, which was not typical for him as a law professor with close relations with the LGBT movement. He was no exception. According to Yoshino, many within the movement itself were far from excited about the trial, for two main reasons. At the time of the trial, same-sex marriage was only legalized in four states. The Supreme Court does not have a tendency to move faster than public opinion, and there were fears that the Court would rule in favor of Prop 8. Moreover, there was scant trust in the plaintiffs’ lawyers: David Boies and Ted Olson were corporate lawyers with no experience in the LGBT movement. Lawyers representing LGBT advocacy groups felt the two might rush the process, sweeping out years of work. 

Only when the decision came down in August 2010 did Yoshino take a closer look at what had taken place. After reading the first few pages of the 3000-page transcript, he was completely hooked by the material—he knew he had to do something more with it. He felt the trial was the best discussion on same-sex marriage he had heard, and the end result of his treatment of the material is a page-turner. Working with trial transcripts and over forty interviews with counsel, witnesses and other stakeholders on both sides of the debate, Yoshino placed same-sex marriage in a historical and legal context, and intertwined the general with the personal.

The civil trial creates the conditions for a great conversation

Both the plaintiffs and the proponents wanted to avoid a trial, explains Yoshino, but the presiding judge, Vaughn Walker, decided otherwise. His objective was to examine the facts related to same-sex marriage. The trial became a rigorous and comprehensive discussion about three main issues: the nature of the “right to marry,” the level of scrutiny that state discrimination should receive under the Fourteenth Amendment’s equal protection clause, and an examination of the evidence for supporting Prop 8, including the idea that it promoted the best environment for raising children. 

Kenji Yoshino

In a court of law, notes Yoshino, every statement is recorded, expert opinions are filed and experts can be challenged on their qualifications. A searing examination of an opponent’s expertise makes it possible to distinguish between laymen’s opinions and scientifically derived knowledge. It was this rigor and comprehensiveness that created the conditions for what Yoshino considers “the best conversation on the subject” to unfold. 

A trial also combines authentic human stories with abstract argumentation. In Hollingsworth v. Perry, says Yoshino, the plaintiffs’ side used a powerful combination of individual personal stories and expert testimony. Having both an individual describing his or her experience of micro aggression, and a scholar explain the science behind those experiences, amplified the effect of the testimonies, Yoshino believes. The plaintiffs won their case.

The effects of the trial on the larger movement

Yoshino points out that a trial can have a much larger impact on society than the direct consequences of the verdict. Discussions during a trial can encourage public debate, which Yoshino hopes to perpetuate through his book. Same-sex marriage indeed occupied the center of LGBT advocacy for many years. Yoshino believes that guaranteeing same-sex marriage would allow other LGBT issues to gain prominence. However, according to Jane Schacter, professor of law at Stanford Law School, once same-sex marriage is dealt with, it might become harder for LGBT questions in general to garner public attention, while more space might be accorded to other issues, such as religious minority questions. 

LGBT rights are the civil rights of our times, says Professor Shelley Correll, director of the Clayman Institute. Same-sex marriage is only one facet of civil rights. First and foremost, the right to marry should be seen not as central in itself, but as one step in the full recognition of the LGBT community in American society. With the Supreme Court's ruling in June 2015 to legalize same-sex marriage in all of the United States, LGBT movements may now have the space and opporutnity for broader advocacy.


Kenji Yoshino photo
Chief Justice Earl Warren Professor of Constitutional Law, NYU School of Law

Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law. He was educated at Harvard (B.A. 1991), Oxford (M.Sc. 1993 as a Rhodes Scholar), and Yale Law School (J.D. 1996). He taught at Yale Law School from 1998 to 2008, where he served as Deputy Dean for intellectual life (2005-6) and became the inaugural Guido Calabresi Professor in 2006. His fields are constitutional law,...

Jonna Louvrier
Postdoctoral Fellow 2014-16

Jonna Louvrier holds a Ph.D. in Management and Organization earned at the Hanken School of Economics, Helsinki Finland. In her doctoral thesis she examined the meanings of diversity, difference and diversity management in Finland and in France from the perspectives of both diversity managers and ethnic minority employees.

Central themes in Jonna’s research are diversity and equality in work life. While at...