Love Doesn't Win—Facts Win

Kenji Yoshino, Speak Now: Marriage Equality on Trial: the Story of Hollingsworth v. Perry

For twelve days in January, 2010, the future of how Americans define “marriage” dwelt in Judge Vaughn Walker’s courtroom in the Northern California District of the Ninth Circuit Court. The case would determine whether California’s Proposition 8, which enshrined a strictly heterosexual marriage definition in California’s constitution, violated America’s federal Constitution. The outcome would resolve today’s largest debate. And the terms would have worldwide implications.

NYU Constitutional scholar Kenji Yoshino, a seasoned academic and respected media commentator famous for translating legalese into English, recounts this landmark case. Because the trial wasn’t broadcast, network TV and Internet sources didn’t even have sound bites to clarify the intricate process. And Judge Walker’s 136-page verdict resists layperson reading. Yoshino thus makes a fitting Virgil to guide interested court-watchers, from either position, through this difficult but influential case.

Yoshino’s narrative begins with Prop 8 itself. Many states have referendum processes and other “direct democracy” initiatives to invest citizenry with law-making ability. Yoshino explains how direct democracy prevents top-level corruption, but notes how, telliingly, its processes permit scared majorities to overwhelm powerless minorities. Beginning with Colorado’s alarmist, and alarming, Amendment 2, voters have greeted changing sexual roles by retreating electorally into tradition, often with unintended consequences.

The case assembled a remarkable congeries of legal minds. The plaintiffs, suing to overturn Prop 8, were headed by Ted Olson and David Boies, who developed remarkable respect and friendship in 2000, when they argued opposite sides before the Supreme Court. Besides a small army of top legal minds, the plaintiffs mustered nine expert witnesses, including historians, sociologists, and psychologists; and seven private citizens, whose stories humanized the experts’ testimony.

Kenji Yoshino, JD

Prop 8 proponents, meanwhile, proved somewhat, erm, problematic. Two successive gubernatorial administrations, representing both major political parties, grudgingly enforced the referendum, but refused to defend it in court. Thus, the referendum’s civilian proponents became defendants. But the courtroom defenses they pitched differed completely from their electoral pitches, and of six expert witnesses, four withdrew support before testimony began. This reduced defence to merely trying to discredit plaintiff testimony.

Readers may be surprised to learn, as Yoshino explains, how infrequently “court cases” involve actual trials. Frequently, in non-criminal cases, both sides submit written testimony, and judges issue verdicts summarily. This saves copious money and time, and usually returns reliable verdicts, but it means contrasting claims don’t receive full airing, and also that cross-examination, the heart of courtroom debate, never happens. Judge Walker, by contrast, demanded a live bench trial.

The heart of Yoshino’s narrative focuses on Judge Walker’s District Court trial. Since the two appeals, to the Ninth Circuit and the Supreme Court, ultimately resolved around procedural issues, Judge Walker’s opinion remains the binding resolution of this case—and, as Yoshino describes, it has already had sweeping judicial influence. Yoshino narrates the give-and-take, the ways opposing lawyers tested facts and eliminated anything indefensible by modern law, with great aplomb.

We’ve heard, in media coverage, claims that Prop 8 and other marriage limitations restrict civil rights. But what does that mean? As plaintiffs’ experts explain current science, as lay witnesses explain the consequences marriage limitations have on their lives, the real meanings become abundantly, even chillingly, clear. (Marriage licenses are sold by court clerks. “Civil union” licenses were sold from the same windows that sold dog licenses. Do the math.)

Meanwhile, the proponents’ spectacular implosion appears almost epic in scope. The campaign pitches that persuaded voters to support Prop 8, appeals mainly to tradition and religion, had little to no courtroom standing. So proponents shifted tacks, using research in anthropology, psychology, and especially child development. But when experts came under cross-examination, their scientific claims actually crumbled quickly. Makes one suspect they perhaps had weak reasoning… or shoddy science. Hmm.

As a married gay man with two sons, Yoshino doesn’t pretend academic dispassion. For him, this case clearly represents how America strives to further its tradition of expanding freedom. By making a powerful, beloved traditional rite available to everybody, Yoshino believes, America became more truly itself. He predicts America will soon have universal marriage equality—by June 2016, he predicts. In fact, marriage equality became universal two months after publication.

Courtroom dramas are an eternally popular literary genre. Anyone who loves legal thrillers will find plenty to like here: arresting characters, tense conflict, a vindicating outcome. Yoshino crafts a gripping narrative of broadening justice that non-scholars can enjoy. Readers who support America’s commitment to expanding freedom will enjoy this brisk, novel-like chronicle. Knowing how love first won makes appreciating our accomplishments possible.