CCLaP Fridays: Speak Now: Marriage Equality on Trial, by Kenji Yoshino


Speak Now: Marriage Equality on Trial
By Kenji Yoshino
Reviewed by Karl Wolff

Kenji Yoshino opens Speak Now: Marriage Equality on Trial with the mixed blessing of November 4, 2008. On that day, the people had spoken. Barack Obama would become the first African-American President of the United States, seen by many as the new face of politics. The same day in California, Proposition 8 was passed. Again, the people had spoken. With Prop 8, California effectively banned gay marriage. On May 22, 2009, Perry v. Schwarzenegger was filed. It planned to “assail a state’s prohibition of same-sex marriage on federal constitutional grounds.” Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law. He is also gay, married, and lives with his husband and two children.

Because Yoshino is a legal scholar, he writes with both personal and intellectual knowledge of the law. As I said before in my review of Uncertain Justice by Laurence Tribe and Joshua Matz, the law effects everyone. Speak Now engages in a parallel narrative. One narrative reads as Yoshino’s personal legal memoir, including his background in law and his re-reading the Perry transcript. The other narrative recounts the story of Perry, from California case all the way to the Supreme Court. Perry was the other case, more commonly known as Windsor, that helped pave the way for legalizing gay marriage in California.

The Perry case operated as an educational opportunity for both sides to illuminate their arguments. The challenge of the proponents (those for Prop 8) involved them defending the law. They had to show evidence that the law was not written with animus towards the LGBT community. The defendants had to argue that they were deserving of equal treatment under the law.

Yoshino draws the reader in with reconstructions of testimony and depositions. He gives succinct background on all the major figures and traces the genealogy of gay rights advocacy in the courts. He discusses how California, unlike other states, has less stringent requirements for writing ballot initiatives. In addition, he stresses how Perry stood out from other LGBT cases. Unlike previous LGBT cases, Perry focused on love rather than sex. As the case proceeded the defendants became the ones talking about loving families. It put a human face on the issue of marriage. The proponents, meanwhile, spoke of marriage as reproductive engine and used data that didn’t stand court scrutiny. If the facts can’t be substantiated, they will be thrown out. The proponents discovered that defending “traditional marriage” was a lot harder than writing thirty-second scaremongering campaign ads and catchy bumper stickers.

As I read this, I thought how Perry was similar to the movie Howl, about the Allen Ginsberg poem deemed obscene. In both cases, the courtroom became an educational arena. And while both Ginsberg’s poem and Perry ended in victory, the struggle for marriage equality is not done. Decades after Brown v. Board of Education, racial segregation is hardly solved. But the battle has moved on to other territory as seen in the abortion debate. While abortion remains legal, access to abortion clinics is now the key battleground. Marriage equality advocates are victorious (at least for now), but the battleground has moved to another prickly topic: religious exemptions for individuals and businesses. Where do these boundaries lie for the individual and businesses? It is a valid and contentious issue.

Yoshino, in an unexpected turn, cheered the Supreme Court’s decision involving The Westboro Baptist Church. He cheered the decision, not because he agreed with Westboro, but because he understood that First Amendment rights include protecting the rights of those espousing unpopular and unpleasant opinions. If one can’t voice unpleasant ideas and opinions, the First Amendment means nothing.

Perry signified to the LGBT community that they were full members of American society and could partake in its benefits and privileges. In the final pages, Yoshino remarked how peculiar it was that the LGBT community has had more success in marriage equality than in LGBT workplace rights. History is odd that way. Things take unexpected turns and the good work is never done.

I’m giving Speak Now a perfect score not because I am an LGBT ally nor because I am fascinated by the Supreme Court. The high score occurred because Yoshino’s book offers a riveting read and it serves an educational purpose. Even if you oppose marriage equality, on whatever grounds, this is a book worth reading.

Out of 10/10

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