It can be hard to remember this today — now that the fight for marriage equality and gay rights is going so well that some activists are warning against "victory blindness" — but, in the grand scheme of things, it was just about five minutes ago that supporting equal marriage was not a mainstream position. The new consensus is so young, in fact, that it hasn't even been seven years since voters in California, the most socially progressive state in the nation, tried to strip their fellow citizens of their rights by voting for Proposition 8.
Despite marriage equality's still not being recognized as a constitutional right, however, the conventional wisdom holds that the fight is over and that supporters of same-sex marriage have won. And while this shift in social norms was a long time coming, and the result of countless activists and decades of organizing, the transition also had its signal moments: the Massachusetts Supreme Court ruling in 2003, the passage of Washington State's Referendum 74, New York Gov. Andrew Cuomo's signing the Marriage Equality Act into law, etc.
But according to the new book from New York University School of Law professor Kenji Yoshino, there's another important episode in the story of marriage equality that many are leaving out — the Hollingsworth v. Perry case, which ultimately led to the striking down of Proposition 8. In "Speak Now: Marriage Equality on Trial," Yoshino examines the case, its legal significance, and its broader influence on American culture. Recently, Salon spoke over the phone with Yoshino about his book and the importance of trials as vehicles for public education. Our conversation has been edited for clarity and length and can be found below.
What was it about this case that you felt deserved a book-length treatment?
I actually came into writing the book because I read the District Court opinion on Aug. 4, 2010, and thought that it looked pretty unusually meticulous. So that sent me back to the 3,000-page trial transcript ... and when I started reading the transcript ... I felt like it was the most rigorous conversation about same-sex marriage that our nation had ever seen.
It had to do with several factors. One was the rigor of the proceedings. In a media debate, or even in an academic debate, it’s easy to run-up the clock or to pivot away from a question. But if you are going through a trial process as an expert, you submit an expert report, you’re deposed on that for several hours, and then you’re on the stand if you end up testifying for open-ended periods of time — including cross-examination by the other side.
Number two would be how comprehensive it was. Usually, when we talk about same-sex marriage, we focus on one issue or another — whether gay parents are adequate parents, or some other sliver of the debate. But this really just took on the entire gamut of legal issues [regarding same-sex marriage]. What is the nature of marriage for legal purposes? Do LGBT people deserve heightened scrutiny under the Equal Protection Clause? Will same-sex marriage destroy marriage? Will it impinge on religious freedom? Everything was in it.
Then finally, I would say that it was very humane. Trials are human events, and so part of the interest ... that kept me going as I was reading through this transcript ... was that these are real lives, real three-dimensional human beings [involved]. In fact, the plaintiff lawyers made an enormous effort to ensure the human face of the trial never left the court room. Instead of just having the plaintiffs be the human face of the trial and then having them disappear after day-one of a twelve-day trial, they intersperse lay witnesses who talked about particular issues throughout.
Do you credit the judge for the trial being as valuable and serious as it was? Or was it something of a team effort, with everyone involved keeping to an elevated standard?
I do think that the judge had an enormous amount of control and therefore deserves an enormous amount of credit. He set the questions for argument and ... said, We’re going to talk about the right to marry, we’re going to talk about whether or not gays meet the four criteria for heightened scrutiny, we're going to explore the reasons that the government had for bans on same-sex marriage, etc. With regard to comprehensiveness, I think that a lot of the credit for the fulsome nature of the trial is really with him.
But with regards to other attributes of the trial, these were really things that are intrinsic to the trial form itself ... John Henry Wigmore, the evidence scholar, once said that cross-examination was the greatest device ever invented for the discovery of truth. And I think we saw that in the trial, in that you raise your hand, swear an oath to tell the truth and nothing but the truth, and then you're on the stand for open-ended periods of time being cross-examined. Every word that you say is being taken down in a transcript ... and, very gradually, people are uncomfortable with dissembling on the stand. It’s a very lonely place for a person to lie.
Finally, with regard to the human aspect, I think it's true of all trials. Trials come about because they are brought by individuals; even the expert witnesses show up as human beings. So it’s no surprise to me that the great Dustin Lance Black play “8” was based off of a trial rather than a same-sex marriage case that was done ... without any kind of live testimony. Because it’s very hard to make a drama out of something that isn’t itself a human event. A summary judgement motion is not a human event in the same way that a trial is.
To back up for a bit: Why was this case such a big deal? Why did it take on such national importance rather than just being a California story?
I would say that nothing in California is really California-specific. It’s the largest state [in the U.S.], in terms of population, and has an economy that rivals those of many countries in Europe. It’s often seen as the bellwether for the rest of the United States; there’s a proverb, As goes California, so goes the nation. And I think that was something that people were extremely aware of when the Prop 8 issue happened.
Also, I think there was an issue of timing. Prop 8 passed during the election that ushered President Obama into office. As someone who was reporting on the election put it, it was a moment of Yes, we can for the Democrats but No, you can't for same-sex couples. There was something of a whiplash effect for many progressives in seeing the first black president elected on the same day as seeing the clock turned back for same-sex couples.
One of the parts of the book that struck me most was how you established the political context before the trial began. We forget this already — or at least I certainly did — but there were a lot of people in the LGBT community who were worried the trial was a big mistake. Why was that?
You’re exactly right that it will be forgotten how terrifying a moment the filing of the case was for the gay community. I can put it simply. At the time we’re having this conversation, 37 states and the District of Columbia have same-sex marriage; at the time when the suit was filed, only four states had same-sex marriage. The worry was that this would shoot up to the United States Supreme Court, and that Supreme Court would not be willing to tread that far ahead of public opinion.
What everybody had in mind was Bowers v. Hardwick, the 1986 decision that gay people had no right to engage in intimate sexual conduct. It wasn’t until seventeen years later, in 2003's Lawrence v. Texas case, that the Supreme Court said, We made a mistake, and overruled itself . And that is actually a short period of time for the Supreme Court to overrule itself (1896's Plessy v. Ferguson decision was not overruled until 1954's Brown v. Board, 58 years later). So if the Supreme Court had gone the other way on this issue, the gay rights community was potentially looking at a long time horizon.
That ended up not happening, of course. But when the Supreme Court ruled on the case, they did so in a somewhat anti-climactic matter.
Yeah, it was anti-climatic in the sense that the Justices didn’t issue ... a 50-state solution. They didn’t say all 50 states have to have same-sex marriage ... Instead what they did was they [vacated and remanded] it on a procedural point that the individuals who were before the Court were not the right people to have brought the suit. That essentially reinstated the District Court’s opinion, meaning that Prop 8 was now void. But the Supreme Court’s ruling did not have effect outside California.
In that sense, you could say it was anti-climatic. You could also say, and this is a point that many people rightly make, that the decision that was rendered on the same day — United States v. Windsor — was much more influential as a matter of law, because it created a precedent that started this cascade of lower court rulings that struck down state bans on same-sex marriage. The issue in Windsor was whether or not a federal definition of marriage that said marriage is between a man and a woman was constitutional.
The Supreme Court struck that down as unconstitutional. Its grounds [for doing so] were slightly ambiguous, but lower courts interpreted it to mean, OK, if the federal ban is unconstitutional, so are the state bans, and then we’ve seen enormous movement since Windsor in regard to state bans being struck down.
Why not write about that case then?
In terms of ... the importance of trials, which is really the focus of my book, the Perry case was much more important.
When I think about the way in which law can change public opinion or people’s worldviews, one way ... is through this top-down legal fiat. Just saying, This is the law of the land! But another — and I think just as important — way is by being a teacher and changing hearts and minds. I think the trial did that.