July 20, 2015

Review: "Speak Now: Marriage Equality on Trial," by Kenji Yoshino

This book is the story of one of the cases that led to Obergefell vs. Hodges, the recent Supreme Court decision that legalized marriage equality in all fifty states. Hollingsworth v. Perry is the trial that resulted in the striking down of California's Proposition 8, the citizens initiative that banned same-sex marriage. 

Because the author is a Professor of Constitutional Law, he gets pretty deep in the legalese weeds here. No doubt some will find this boring; I found it fascinating, and the story of the trial reads like a novel. The author discusses the plaintiffs (two same-sex couples denied a marriage license), the proponents, the lawyers behind the marriage-equality movement and the history of the movement, the lawyers who brought Perry to trial (including Republican Ted Olson, who ironically won the horrid Citizens United decision before the Supreme Court), and the judge. This all takes place in Part I, a necessary set-up to the trial itself.

Part II delves deep into the trial, including excerpts from the transcript. The author thoroughly explores the arguments put forth by both sides, and explains how the arguments against same-sex marriage simply do not hold up. The proponents' witnesses were, to put it mildly, lacking, and the plaintiffs made their case with a mixture of expert witnesses and people relating their lived experiences. The plaintiffs ultimately prevailed, but of course the case was appealed to the Supreme Court, where it was taken up along with United States vs. Windsor, the case that struck down DOMA (the federal Defense of Marriage Act). The California judge's ruling in Perry was also upheld at that time, albeit on narrow grounds that applied to the state of California only; but in that ruling (along with Windsor) the seed was planted that led to the final victory just last month. 

The author, Kenji Yoshino, does a very good job of explaining torturous legal minutiae and making it understandable for the layperson, and constructing an absorbing narrative. Especially interesting, to me, was his championing the process of the trial in and of itself, and how cross-examination can strip arguments to their bare essentials and create a record that exposes their faults and virtues for all to see. One paragraph I particularly liked:

Finally, trials separate fact from belief. At least in the United States today, the trial requires an innately secular form of argumentation. As such, it operates as a sieve that filters out religious motivations for a law. The Perry trial showed that opposition to same-sex marriage is largely rooted in conservative religious beliefs. Beliefs move people to engage passionately in a cause, and passion can often persuade. Yet as the trial showed, a passion is not a reason, much less a reason for a law. (p. 269)

This is good too:

Finally, a trial is, as one reporter said of Perry, a "great and theatrical classroom." Olson later reflected that Perry "was an enormous education to everybody who was in that courtroom, even those who had been laboring in the vineyard for gay rights." Though the proceedings were not broadcast, Perry has generated numerous books, articles, TV pieces, a documentary, and a play, all of which have extended the trial's reach. While the purpose of a trial is justice for the parties, not public education, trials have been known to provide that education as a collateral benefit. (p. 274)

The author ends the book with a ringing endorsement:

So let me pre-commit myself: Next time such a legal controversy arises that implicates thorny "legislative" facts, let it go to trial. Let us try whether women regret their abortions, whether guns deter crime, or whether climate change is occurring. And let the product of the trial be disseminated throughout all forums in which the debate is taking place. For me, the Perry trial explored not one, but two civil ceremonies--the ceremony of marriage and the ceremony of the trial. I have come to see that my conviction about the importance of the civil trial are just as consequential as my convictions about marriage. And so I say again--for the next great legal controversy that turns on key legislative fact: Let there be a trial.

Everyone knows how terribly flawed the American judicial system is, but reading this book will revive one's faith in it, even for a little while. This is an admirable accomplishment. It's also more meaningful now, in light of marriage equality's ultimate victory.

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