Sunday, June 21, 2015

Speak Now: Marriage Equality on Trial - A Review

The tension mounts for those of us hoping the Supreme Court will announce in the next few days that the right of same-sex couples to marry is the law of the land.  Mind-readers and soothsayers are trying to guess how Justice Kennedy is going to vote.  The assumption is the court will vote along ideological lines, although both sides will find justifications in the law for their decisions.  It just wouldn’t do to suggest there is arbitrariness in their thinking on Hollingsworth v. Perry, the case that will determine whether that last major barrier to gay dignity will fall.

For those of us with a dog in this race, it’s an open-and-shut case.  All the arguments on one side stem from the concept of “abominations,” a misreading of the taboo against following gods other than the God of Abraham.  And all the arguments on the other side stem from the conviction that there is no higher value than equality among men and women.  A fair airing of these two positions in a secular courtroom is all it takes to make plain there is no actual argument.

That’s the conclusion, for example, in  Kenji Yoshino’s book on the story behind the Prop. 8 Trial, Speak Now: Marriage Equality on Trial.  The plaintiffs, those asking for same-sex marriage rights, present their seventeen witnesses (eight lay witnesses and nine expert ones).  The proponents of Prop. 8 present their two, one of whom recants when the trial is over, and the story is told.

The story reads like a detective novel.  Yoshino is a beautiful writer.  To read him is to come away convinced there is only one way the Court can decide.  We are heading for one giant “I told you so.”  Either that, or the shock and disillusionment of the century.

It would be a mistake to suggest Yoshino’s take on the trial is just political.  He is a gay man, is married with children, and makes no secret of how he wants the court to decide.  But his stated goal in writing the book is not so much to advance gay rights as it is to outline the importance of trial courts in American life.  He’s writing more as a lawyer than as a gay man, a fan of the American legal system, and the role the trial courts play in solving major social and cultural issues. 

He's also a master story-teller.  Yoshino weaves his own personal story into the background story of how religious groups took from gay people the right to marry in California, but they got it back again.  What you’d expect to be a dry account of just another trial turns out to be a fascinating tale of people getting their act together and fixing things.  Judge Vaughn Walker decides to make his trial all about fact-finding, knowing he’s creating an important document and a major moment in American legal history.  Detractors like to paint the star-studded plaintiffs’ lawyers Olson and Boies as egoists seeking the limelight. They saw this as potentially the civil rights case of the century and couldn’t resist grabbing and running with it, the criticism goes.  Yoshino argues back, revealing the soundness of their strategy, the conviction that liberals and conservatives ought to be able to unite behind the 14th Amendment, regardless of any one starting place on homosexuality, that what unites them is a respect for the rule of law and the Constitution. 

What ended up at the Supreme Court as Hollingsworth v. Perry began with the Prop. 8 trial, where it was known as Perry v. Schwarzenegger.  From the start, the story grows bigger than any single person or group can contain.  When proponents of Prop. 8 attempt to shut down the microphones and the cameras on the trial, they are foiled by Dustin Lance Black, who writes a play based on the transcript.  All of these details are contextualized in Yoshino’s account.  All pop off the page like twists in the plot of a whodunit.

Yoshino’s book has only been out a month, but it has already attracted a surprising array of glowing endorsements.  (All references that follow are from the book jacket or Amazon editorial page.)  The New York Times Book Review calls it “lucid, subtle and illuminating.”  The Boston Globe calls it “stirring…both timely and durable.”  Andrew Solomon fairly gushes:

Precision and compassion are frequently opposed, but Kenji Yoshino writes with almost fanatical clarity about the vulnerabilities of the human heart.  His hard-won ability to imbue intellectual conundrums with moral certainty, his meticulous reporting on legal mechanisms and procedures, and his willingness to acknowledge his personal interest in Perry without indulging it to boost his arguments are all signs of his penetrating mind and dignified spirit. His exquisite restraint and quiet eloquence imbue this book, which is as much a triumph of poetry as it is of legal reasoning.”  (emphasis in original)

And Solomon’s not alone.  Walter Isaacson calls Yoshino’s style “breathtakingly beautiful” and tells us, “By the end, I had tears in my eyes.”

The beautiful writing, in my view, is just icing on the cake.  Yoshino’s colleagues in the law  recognize what he has accomplished here.  Dahlia Lithwick of Slate calls the book a “scrupulously written account of why facts matter, why trials matter, and why courts are well situated to unearth complex truths.”  Lawrence Tribe takes it even further.  Kenji Yoshino, he says, “offers brilliant insights into the ways a well-run civil trial can serve as an engine of cultural awakening.”

Not without publicity.  Not without books like this one, to tell the story of a trial that many have labeled the gay rights trial of the new century.  Without voices like Yoshino’s the story just becomes yesterday’s news, and we move on and think the change happens all by itself.  It doesn’t.  It takes people to move things.

I still have a “No on Prop. 8” bumper sticker on my car.  It was an important time in my life, the last time I got actively involved in the cause of gay liberation.  My husband and I volunteered to work on the campaign and spent hours in San Francisco telephoning to get out the vote and encourage people not to fall for the line the Catholic and Mormon Churches were feeding the public, that it was all about keeping their children safe.  It was the Anita Bryant campaign all over again.  And to our horror and disillusionment with our fellow Californians, we lost the battle.  The state, influenced by a particularly insidious religious ideology, stepped in and used that ideology to take away a civil right.

What we couldn’t see at the time, though, was that just as the Anita Bryant campaign backfired and gave gay people a reason to get off their behinds and do something, the passing of Prop. 8, which took away the right of same-sex couples to marry in California, shook people out of their lethargy and made plain the injustice of its cause.  The Perry v. Schwarzenegger trial that took place in Judge Walker’s court and later became Hollingsworth v. Perry before the Supreme Court, the case that has us on pins and needles for a decision due out any day now, that case which aired all the misinformation, all the homophobia, all the bigotry, would not have taken place if Prop. 8 had failed.  We would have won the battle and it’s quite likely the war would have slogged on like some World War I misery in the trenches.  Instead, we got the doors and windows open and now have a chance to rid ourselves of the dank smell of homophobia once and for all in this country.  It's a lesson in patience and staying cool.

It has been a long hard slog.  People don’t let go easily of religious notions implanted in childhood.  Once you convince yourself God wants you to look askance at Philistines, philistine is ever after a bad word.  Once you are persuaded your scriptures are God speaking to you, what are you to do with the information that the Midianites all deserved to die because they don't worship as you do?  How do you keep from looking around for modern-day Midianites?

Interestingly, the reason Prop. 8 passed eventually became clear.  We focused on facts instead of emotions, thinking that we could convince people with reason that gays and lesbians deserved equal rights.  We thought the case was so obvious, nobody could miss it.

But they did miss it.  And so the campaign changed, and we began getting gay and lesbian people to tell their stories.  To sit with non-gays and tell them what it’s like to live in their skin and feel injustice in their bones.  And the non-gays, bless their hearts, listened.  The polls show that year by year attitudes changed.  Today, the majority of the American people are in favor of allowing gays and lesbians to marry.

Yoshino explains how Olson and Boies used the same approach in the trial.  Instead of “statistical compassion” they used “narrative compassion.”  Yoshino demonstrates the distinction in Ronald Reagan.  Sit him down with facts and figures about poverty and homelessness, and the man was cold as ice.  Unmoved.  Put a real person in front of him to tell his story and Reagan could be quite compassionate.  You can call this manipulating people through their emotions.  You can also call it getting them to put aside longstanding lists of arguments and figures, often arbitrarily collected, and look at a person’s lived reality.   It’s one thing for the religious right and their lawyers to go on about the necessity of saving marriage from gays who would dilute the sacredness.  And quite another to sit in front of a man like the co-plaintiff Jeffrey Zarillo and hear him say of his partner, Paul Katami, that he loved Katami “probably more than I love myself.”  He continued, Yoshino tells us. “I would do anything for him.  I would put his needs ahead of my own."

Yoshino shows how the trial cast the conflict between pro-same-sex marriage and anti-same sex marriage in a new light, when you have to listen to real people.  From the right, we hear the argument that gays should not be allowed to adopt children, that they are putting their own selfish desires as adults over the needs of children.  But it’s hard to read the testimony of the plaintiffs and sustain this view, Yoshino explains.

Is loving another adult more than you love yourself selfish?  …  Perry and Stier were raising four sons together – each woman had brought two sons into the relationship.  How might they have behaved more selflessly?  Should Stier have stayed in her previous marriage to a man?  Should Perry, who had conceived her twins through artificial reproductive technology, not have had them in the first place?  Should heterosexual couples be banned from using sperm or egg donors?  Should the women have ended their eleven-year relationship and married men?  Such questions would be raised with the expert witnesses.  But the proponents [of the ban on same-sex marriage] did not ask the plaintiffs a single question on the stand about their personal lives.  (p. 95)

Yoshino demonstrates how, when gay people get to tell their story (when the focus is on the narrative reality, not the statistical one) they are able to make clear the distinction between a “negative liberty” and a “responsibility right.”  That is, it’s not about the right to be left alone.  To practice sex as you like.  It’s about the right to take on the responsibility of being a spouse, and potentially a parent.  That switch of focus is often missed in public debates and online chats, where anybody can say anything without regard to truth or balance or evidence.  But when things are slowed down in a courtroom and the judge, jury and witnesses can hear and see for themselves what it feels like to be denied the right to marry, one comes to see the animus in trying to paint people who want to marry as selfish.

[If you’re interested in an excellent summary of the main arguments of the case, check out Bill Moyers’ interview with Olson and Boies just after the trial’s end here.] 

The benefit of a thorough hearing, where all of these arguments are brought out in one place, is that it exposes the fact that it is animus and insensitivity, not reason, that motivates the opponents of same-sex marriage.  Yoshino cites Justice Kennedy in this regard:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone.  It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. (p. 190)

I need to inject one slight hesitation in this otherwise strong endorsement of Speak Now.  As much as Yoshino was able to put the complexities of the case in plain language, my lack of familiarity with a couple legal concepts made me stumble.  The distinction between legislative facts and adjudicative facts, for example, required my going outside the book for a quick and dirty Wikipedia reference.  Other expressions – de novo vs. clear error reviews, occasionally slowed me down.  In the end, though, I preferred being asked to step up to the task of understanding the legal system over being talked down to.  These challenges were few and far between and I have the impression the concepts helped frame the story, and I believe I have a better grasp on the culture of the courtroom than I ever had before.

The decision to carry the public discourse on same-sex marriage into the courtroom and argue it under the strictest rules of court procedure now means we have a record of how that issue is debated when some of the country’s best minds are put to work on it.  That record becomes available to future court cases, not only in the United States, but abroad, where gay rights are still little more than a dream.  “Nations,” Yoshino says, “can live under the truths of the trial before they are asked to live up to them.” (p. 279).

In a more perfect world, we would subject all of our most complex issues to the kind of scrutiny same-sex marriage has received.  Abortion.  Immigration.  Climate change.  Whether guns deter crime.  “For me,” says Yoshino, “my convictions about the importance of the civil trial are just as consequential as my convictions about marriage.  And so I say again – for the next great legal controversy that turns on key legislative facts: Let there be a trial.” (p. 280)

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Addendum [added June 22]: Yoshino's conclusion that a court trial can serve as a valuable educational tool, is nicely summarized in the April 21 edition of 

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