In this post, Kenji Yoshino discusses his forthcoming book Speak Now: Marriage Equality on Trial (Crown, April 2015). The renowned legal scholar’s newest work tells the definitive story of Hollingsworth v. Perry, the trial that will stand as the most potent argument for marriage equality. Advanced copies are available, please email firstname.lastname@example.org (limited to first ten respondents).
Q. SPEAK NOW revisits the much-publicized Hollingsworth v. Perry federal trial, which overturned Proposition 8, California’s ban on same-sex marriage. Why did you feel this case warranted closer examination?
A. When I read the 2010 decision in the case striking down Prop 8, I noticed that it was different in kind from other decisions on same-sex marriage. The 136-page opinion was encrusted with facts, which were drawn from the twelve-day Hollingsworth v. Perry trial, the first federal trial ever on this topic. Then, when I read the 3,000-page transcript of the proceedings, I had the experience of many readers—perhaps the experience that defines us as readers—of “falling into” the text and not emerging into everyday life until I had turned the final page. It was a shining civil rights document—more thorough, rigorous, and dramatic than any debate I had ever encountered on the subject of same-sex marriage. Because the trial was not televised, I became obsessed with bringing the proceedings to the general public.
Q. Many have cited United States v. Windsor, which challenged the so-called Defense of Marriage Act, as having a greater impact in the fight for marriage equality. Would you agree or disagree?
A. As a matter of law, I agree that Windsor has had by far the greater impact, because the Supreme Court decided on the merits of that case. Lower courts have used that ruling to strike down state bans on same-sex marriage around the country. Because the Supreme Court decided Perry on purely procedural grounds, that decision has had less dramatic effects. Yet in terms of the facts about same-sex marriage, I believe that Perry will leave a stronger legacy. The Perry trial meticulously addressed all the relevant factual disputes about same-sex marriage—including the nature of civil marriage, the political status of gays, the role of religion in civil society, the ability of gay couples to raise healthy children, and the capacity of direct democracy to protect individual rights. Because Windsor did not go to trial, it did not make that contribution. In the end, Perry is much more likely to persuade the average citizen in the U.S. to accept marriage equality, or a citizen living in one of the two hundred nations that lacks marriage equality to agitate for it.
Q. As an expert in constitutional law, you’re obviously very familiar with the landmark cases that have helped shaped U.S. policy. How do you feel history will reflect on Hollingsworth v. Perry?
A. Only time will tell. The big ticket cases in constitutional law—Brown v. Board of Education, Roe v. Wade, or Loving v. Virginia—have that status because the Supreme Court issued a ruling that changed the law for the entire nation. The comparable cases to Perry are those where the real action occurred at trial, like the Scopes trial, which concerned whether evolution could be taught in Tennessee public schools. I think much of whether these trials live or die in our collective memory has to do with how well they are memorialized. SPEAK NOW aspires to enter Perry into the annals of constitutional law.
Q. Taking your lawyer’s hat off for a moment, as a married gay man with children, what is your personal perspective on the significance of Hollingsworth v. Perry?
A. Between the filing of the complaint in Perry and the 2013 decision by the Supreme Court, my husband and I got married, welcomed our daughter into this world, and then, fourteen months later, welcomed our son. When I sat next to my husband at the Supreme Court oral arguments in the case in March 2013, we felt a choking panic—not only because of the outcome of the case, but also because we were both away from our children for the first time since their births. Those anxieties were of course intertwined—the decision in the case would affect our ability to offer legal protections to our children. This case brought home to me that marriage is a rare place where law and love converge.
Some may raise questions about how dispassionate I can be in analyzing these issues, but I don’t think there is a truly neutral place to stand in this debate. A straight married person’s objectivity could also be challenged, since one of the proponents’ main arguments was that gay marriages would diminish the value of straight ones. I decided that the best way forward was to disclose where I was coming from throughout the writing of SPEAK NOW—to the people I interviewed, as well as to my readers. I hope readers will see that just as life experience can dull perception, so too can it sharpen it.
Q. Some LGBT activists have criticized the push for marriage equality, arguing that the movement should focus on suicide prevention, workplace discrimination, or youth homelessness. Do you agree with this critique? Why is marriage equality so important?
A. I absolutely agree that much other gay-rights work remains to be done, both nationally and globally. A recent poll showed that 69 percent of Americans believe that it is illegal to fire a person just for being gay. In fact, it remains legal to do so in twenty-nine states. Transgender people have even fewer protections across the board. Looking at the global landscape, the picture is even worse. About seventy countries still criminalize same-sex sexual conduct; of those, at least eight punish such conduct with death. So marriage is just a piece of a much larger struggle.
Yet it is a very important piece. Marriage is such a universal human experience that, as one witness said, “there is nothing like marriage except marriage.” Whether we choose to marry or not, the ability to make that choice—to possess that fundamental constitutional right— is critical to full citizenship. Once that right has been granted, inequality in other domains becomes that much harder to justify.
Q. What do you hope readers of SPEAK NOW will take away with them?
A. I hope readers will come away from this book with a deeper appreciation of two civil ceremonies—the ceremony of marriage and the ceremony of the trial. Civil trials are going the way of the dodo in our society, with less than two percent of civil cases in federal court ending in trial (down from about 20 percent in the 1930s). I hope people will see that for inflamed social controversies, trials may be the least imperfect means of getting at the truth. And I hope readers see that in this case, the facts overwhelmingly favored allowing loving same-sex couples to participate in the civil ceremony of marriage. My title draws on the tremulous moment in a marriage ceremony where the officiant asks individuals who object to the marriage to “speak now or forever hold their peace.” I think marriage trials—no less than marriages—are moments of extreme cultural compression that require those who object to bring forth their arguments or live with the consequences of their silence.
Click here to learn more about Speak Now: Marriage Equality on Trial
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.