On June 26, 2013, the Supreme Court delivered the landmark United States v. Windsor decision, striking down the provision of the Defense of Marriage Act that barred the federal government from recognizing same-sex marriages, and triggering a sea change. Post-Windsor, courts have swept away same-sex marriage bans in 22 states. In less than two years, a majority of the country—36 states and the District of Columbia—now recognizes same-sex marriage. In mid-February, the Supreme Court agreed to hear four same-sex marriage cases and will issue a decision by mid-summer.

And yet, despite Windsor’s far-reaching impact, Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, anticipates that another case, decided on that same summer day, deserves to have just as strong a legacy: Hollingsworth v. Perry. In his new book Speak Now: Marriage Equality on Trial, Yoshino argues that the Perry trial was “the most rigorous, comprehensive, and thoughtful conversation we’ve ever had in any forum on same-sex marriage in the country.” Because, in his view, the trial was able to strip away half-truths to get at the facts of same-sex marriage, he holds that the “next great legal controversy” that has stirred up the culture wars—such as whether guns deter crime or if climate change is happening—should be tried in the courtroom, not hashed out by politicians.

Yoshino came to the trial record shortly after August 4, 2010, when Judge Vaughn Walker, the now-retired chief district court judge for the Northern District of California, ruled that California’s Proposition 8 amendment, which defined marriage as between a man and a woman, violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.

Intrigued by the judge’s “unusually thorough opinion,” Yoshino had a librarian pull all 13 volumes of the trial record. After blasting through the 3,000-page transcript, he says, “It struck me that this was a shining civil rights document that needed to be brought to the public.”

In 2013, the Supreme Court would rule on Perry on procedural grounds, effectively dodging the same-sex marriage debate while letting same-sex marriage proceed in California. Yoshino’s book revisits not only the arguments but also the human dramas that animated them throughout the 12-day trial. (In the book he also intersperses personal reflections about moments from his own life; between the filing of the case and the Supreme Court’s decision, Yoshino married Ron Stoneham and the couple welcomed two children into their family.)

He draws a sharp contrast between the rigorous trial proceedings and what he deems the misleading ad campaigns that convinced 52 percent of voters to say “yes” to Proposition 8. “I want to drive a wedge between the question of where the most democratically legitimate conversation happens, which I think is open to debate, and where the best conversation happens, which I don’t think is open for debate,” he says.

“In media debates, or even academic debates, a smart person can always run out the clock or pivot away from the question and not really have to answer it,” he adds. “Whereas if you’re on the stand, under oath, under penalty of perjury, and you’re being cross-examined for open-ended periods of time, you simply have to answer the question.”

Video: What is the value of a civil trial, and how does a trial differ from other kinds of public debate?

Yoshino claims that, faced with such scrutiny, the Proposition 8 proponents’ arguments against same-sex marriage withered, and, under cross-examination, so did their experts. For example, the proponents argued that the legalization of same-sex marriage would lead to the “deinstitutionalization” of marriage, damaging the practice as a whole by robbing it of public regard and commitment. During cross-examination, plaintiff lawyer David Boies LLM ’76 cornered one of the proponents’ expert witnesses, who admitted that heterosexuals were the ones who had deinstitutionalized marriage.

Given our justice system today, the odds were against Perry ever seeing the inside of a courtroom. Less than two percent of civil cases filed in federal court make it to trial, according to the American Bar Association. Speak Now, then, serves a dual purpose: it is a paean to the dying civil jury trial and a vehicle to convey the Perry arguments, in a comprehensive form, to readers.

Citing landmark trials, from the Kitzmiller v. Dover Area School District trial on intelligent design to the famous Holocaust denial trials, Yoshino says, “In all those cases, I really feel like the trial brought the voice of reason to the debate in a way that transformed the national conversation.”

Five years after Perry, he stands by his commitment to the power of the record: “Something happened in those 12 days in that tiny courtroom in San Francisco that deserves to have a life.”

Posted April 21, 2015