Bob Egelko reviews "Speak Now: Marriage Equality on Trial," by Kenji Yoshino
Proposition 8, the same-sexmarriage ban that California voters approved in 2008, is now history. And legal scholar Kenji Yoshino makes a valuable contribution to that history in his new book, “Speak Now: Marriage Equality on Trial.”
Two books on Prop. 8’s journey through the courts were published last year, both insider accounts: “Forcing the Spring,” by journalist Jo Becker, who had four years of access to the legal team that took the measure down, and “Redeeming the Dream,” by Theodore Olson and David Boies, the self-described legal odd couple who carried the case through trial and appellate courts to the U.S. Supreme Court, winning at every level. Both are worth reading for their revelations about the case and its participants, but Yoshino, a professor of constitutional law at New York University, brings an outsider’s perspective and paints on a broader canvas.
His primary subject is trials — the 12-day proceeding in 2010 before Chief U.S. District Judge Vaughn Walker in San Francisco, the first trial in any federal court on the constitutionality of same-sex marriage, and its lessons for the capacity of the legal system to address disputed social issues.
Can the same judges and procedures we’ve trusted with decisions over our liberty and property be relied on to decide “legislative facts,” the evidence that underlies public policy? Like whether abortion hurts women, guns deter crime or children are better off with opposite-sex than with samesex parents? Can sworn testimony by expert witnesses, cross-examination by opposing lawyers and judicial findings subject to appellate review yield answers more trustworthy than the products of congressional debate and multimillion-dollar initiative campaigns?
Yes, they can, writes Yoshino, with the Prop. 8 trial as Exhibit A. Trials, he says, “separate fact from belief.”
The author acknowledges he is no disinterested observer, but a gay man who married his partner in Connecticut in August 2009, nine months after same-sex marriage was both legalized in that state and outlawed by California’s voters. In one remarkable scene, Yoshino’s interview with Loren Marks, one of four academics whose planned testimony on the superiority of opposite-sex marriage was first proposed and then withdrawn by Prop. 8’s defenders, ends with a hug from Marks and an invitation to call him if Yoshino and his husband ever need advice on raising their young children. Yoshino says he refrained from suggesting the obvious — “to let me offer my children the protection of marriage” in states like Marks’ Louisiana.
Yoshino rightly makes no grand claims for the legal impact of the case, unlike Olson and Boies, who in an understandable moment of fervor describe the Supreme Court’s procedural ruling in their favor in June 2013 as “a victory that would echo throughout history,” though its sole effect was to reinstate Walker’s August 2010 decision declaring Prop. 8 unconstitutional. In the same vein, Becker’s impressive account of the inner workings of the case has been justly criticized for her opening line that introduced Chad Griffin, the gayrights activist behind the lawsuit: “This is how a revolution begins.”
Yoshino credits Prop. 8’s legal team for sometimes effective interrogation of opposing witnesses but pinpoints why their case was doomed once Walker decided to hold a trial: The measure’s proponents considered fact-finding proceedings largely irrelevant to the justice of their cause. As lead defense counsel Charles Cooper told an incredulous Walker during closing arguments, “You don’t have to have evidence,” beyond dictionary definitions of marriage, to justify its limitation to one man and one woman.
Their opponents, though initially reluctant to go to trial, marshaled an array of researchers on the history of marriage and its evolution over time, the enduring political and social hostility toward gays and lesbians, and the impact on humans — the plaintiff couples, denied family status for themselves and their children and emotionally battered by the 2008 campaign, and one supporting gay witness who was driven near suicide by medically discredit- ed “conversion therapy.”
Yoshino may not be an impartial guide, but he is an informed one. He looks for underlying issues — since California has narrowed the “material gap” between gays and straights by legalizing domestic partnerships, the plaintiffs must show that the “dignitary gap” of denying marriage remained crucial. He parses the Constitution — the 14th Amendment’s guarantee of equal protection, though drafted for newly freed slaves, was worded in general terms, its meaning left to “the intelligence of later generations.” He translates crucial terminology — the antiminority “animus” that can invalidate a law, in the view of the Supreme Court, need not amount to bigotry but can be the product of ignorance or “insensitivity caused by simple want of careful, rational reflection,” in the words of swing-vote Justice Anthony Kennedy.
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. While the San Francisco trial and Walker’s 136page ruling have no legal effect outside California, their “imprint,” Yoshino observes, can be seen far and wide — in a Utah judge’s definition of marriage, a Texas court’s assessment of gays’ and lesbians’ ability to contribute equally to society, a Wisconsin judge’s analysis of the history of discrimination based on sexual orientation. And as the Supreme Court prepares to rule this June on same-sex couples’ constitutional right to marry, he writes, Walker’s findings will be “hard to ignore.”
There is force to Yoshino’s conclusion: “For the next great legal controversy that turns on key legislative facts: Let there be a trial.”