Freshman Year Reading/ Common Reading Guide
Speak Now: Marriage Equality on Trial The Story of Hollingsworth v. Perry by Kenji Yoshino
Broadway | TR | 978-0-385-34882-9 | $16.00 e-Book: 978-0-385-34881-2 | $13.99
about this book Speak Now recounts the story of Hollingsworth v. Perry, the landmark case that legalized same-sex marriage in California. The book is simultaneously an absorbing account of the trial, a memoir about the beginning of Yoshino’s marriage and family life, and a love letter to the civil trial. The trial coverage traces the case from its beginnings in the Beverly Hills Hotel, to the U.S. Court of Appeals for the Ninth Circuit, and to the U.S. Supreme Court, giving thorough descriptions of the plaintiffs, proponents, witnesses, judge, and the parties’ legal strategies.
about the author Speak Now is the third book by Kenji Yoshino, who is the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law. An award-winning professor who previously taught at Yale Law School, Yoshino writes and teaches in the fields of constitutional law, anti-discrimination law, and law and literature. With degrees from Harvard, Oxford, and Yale Law School, Yoshino is a leading voice on contemporary legal issues, and contributes to numerous television and radio programs in addition to his academic writing. Yoshino lives in New York with his husband and two children.
discussion questions 1. On June 26, 2015, the Supreme Court handed down an opinion in Obergefell v. Hodges that required all states to permit same-sex marriages. Find the Court’s decision in this case, written by Justice Kennedy, and the dissenting opinions by Justices Roberts, Scalia, Alito, and Thomas. How is the Court’s decision in Obergefell v. Hodges similar to the decision in Hollingsworth v. Perry (2013)? How is it different? How is it similar to the decision in United States v. Windsor (2013)? How is it different? Consider legal debates and the consequences of each decision in your answer. 2. When same-sex marriage became legal in Massachusetts, Yoshino says his friends and family started pressuring him to “get [his] personal life in order”; his heterosexual peers previously had been exposed to “social discipline” to settle down and get married when they reached their twenties. Why does society pressure people to get married? Do you think that this pressure is helpful or harmful to people? Is it helpful or harmful to society? Why? 3. Yoshino opens the book with the story of his own same-sex marriage, and frequently throughout the book he intersperses details of his marriage and the birth of his two children with the story of Hollingsworth v. Perry. Why do you think Yoshino
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chose to open the book with his own story rather than with details of the court case? How does this shape your understanding of his goals in writing the book? Do you think this was a good choice? Why or why not? What does his comment about choosing to not use his “constitutional law professor voice” (p. 9) add to your understanding of his inclusion of personal details? 4. Yoshino shows how there are many stakeholders in a civil case, including plaintiffs, lawyers, social change organizations, judges, expert and lay witnesses, the media, governmental bodies, and the public. The variety of stakeholders suggests that while trials often seen as personal and as “belonging” to the plaintiffs, there is a sense in which they “belong” to the society that is going to be bound by a judge’s decision. In the Perry case, various groups sued to join the case on both the plaintiffs’ and the proponents’ sides. Which groups sued to join the case, and why? Which were successful, and why? Do you agree with Judge Walker’s rulings? Why or why not? When should individuals initiate a case? When should people and organizations have the right to join cases initiated by others? 5. What is the difference between enforcing a law and defending a law? Did the Schwarzenegger administration enforce and/or defend Prop 8? Is the executive branch of a state or country justified in refusing to defend a duly enacted law? Why or why not? 6. What are some of the personal and social benefits of marriage? What rights and responsibilities accompany the institution of marriage? At the opening of the trial, Judge Walker asked why the state is involved in marriages at all. Why do you think the state is involved in marriages, when many people see marriage as a religious institution? Should the state control marriages? What are the benefits of this system? What problems does it create? There are myriad legal rights and responsibilities connected to marriage. How many can you list? 7. Yoshino writes that “The great strength of the Perry trial, and of our adversarial system generally, is an obsessive commitment to factual accuracy” (p. 267). He also discusses the debate within the legal system about what sorts of facts can be determined during a trial. What is your position on this debate? Who should determine facts, and what standards should they use to sort between truth and falsity, good science and junk science, reality and unsubstantiated beliefs? How do courts make factual findings? How do legislative bodies learn and debate facts? What are the pros and cons of each forum as a means for arriving at the truth and making policy choices? 8. Yoshino’s book praises civil trials because they are places where facts can be carefully examined and sorted from mere propaganda, and where people can be closely questioned and asked to rigorously prove their claims. What other institutions in this country are supposed to discover the truth? Do you think Yoshino’s praise of trials implies a criticism of the media or academia? 9. The battle over same-sex marriage played out in the court system, in legislatures, and in referenda voted on directly by the people. Why was the issue fought on so many fronts? What are the advantages and disadvantages of fighting in each venue? Which arena do you think does the best job of handling controversial issues? Why? 10. One theme throughout the book is the comparison of this case to historic civil rights court cases. How was Bowers v. Hardwick (1986) like or unlike Plessy v. Ferguson (1896)? Discuss what activists mean when they say court cases happen “too soon.” How does this relate to the backlash after Roe v. Wade (1973) and the civil-rights strategy that delayed cases on interracial marriage until long after the passage of Brown v. Board of Education (1954)? 11. Yoshino argues that impartiality does not always guarantee better understanding of a subject (p. 9). Do you agree or disagree? Consider Yoshino’s experiences in writing this book and also the multiple times people questioned Judge Walker’s fitness as a judge before and after the trial. Why do people think that impartiality leads to fairness? 12. Some groups criticized the plaintiffs’ lawyers for making so much money on the Perry trial. There seems to be a social norm that lawyers work on cases of major social importance without charging fees. For example, lawyers for the plaintiffs in Lawrence v. Texas (2003) and United States v. Windsor (2013) worked pro bono. Why do you think this norm developed? Should lawyers profit on cases of social importance? Why or why not?
represented the gay community. Why did each side embrace this use of symbolism? Why did the plaintiffs’ side avoid symbols of the gay community? Do you agree with their strategy? 14. According to Gregory Herek, what three dimensions do social scientists use to define sexual orientation? List situations and examples where each of the three aspects is more relevant. 15. The Alliance Defense Fund (ADF) says that it is fighting for “religious liberty,” but its frequent opponent, Americans United for Separation of Church and State, says the ADF is fighting for “Christian superiority” (p. 54). Who is right? What evidence does the ADF use to bolster its claim that religious liberty is at risk? What evidence do other groups use to argue that it is fighting to remove the line between church and state? 16. An issue that provided subtext to the Perry trial is the debate over the meaning of the Establishment Clause of the U.S. Constitution. What does this clause say? How have the courts interpreted it? How has this shaped U.S. culture? What do you think should be the relationship between religion and the state? Why? 17. What is heightened scrutiny in the context of judicial review of discriminatory governmental action? What five classifications does it apply to? Do you think that some forms of discrimination should be judged more strictly than others? Why or why not? 18. What is the difference between narrative compassion and statistical compassion? How does each kind of compassion figure into the plaintiff’s trial strategy? Think about political debates of which you are aware. Which form of compassion worked best to capture your attention? Which is more convincing? Why? 19. When explaining ballot initiatives that can be created by citizens without input from legislatures, Yoshino writes: “The great benefit of direct democracy is that it allows citizens to check legislatures captured by special interests. The great downside is that citizens can sidestep legislatures to disadvantage minorities” (p. 43). Find examples in Speak Now to illustrate the upsides and downsides of such initiatives. Do you think that the advantages outweigh the disadvantages? Find examples of ballot initiatives not mentioned by Yoshino. What trends do you see in the topics they address? Why do you think these topics predominate? Do the trends suggest that ballot initiatives are a positive or a negative influence on equality in this country? 20. Make a timeline of the major events in the fight for same-sex marriage equality. What event should be considered the movement’s starting point? Have the most significant events involved laws, court cases, or other historical moments? 21. Both the proponents and the plaintiffs argue that a decision for their side would be beneficial for the health and happiness of children. What arguments did each side present to prove their case?
about this guide’s writers CHASE COOPER received his law degree from the University of Virginia School of Law. He is an associate litigation attorney at Jones Day in Dallas. Any views expressed in this publication are solely those of the authors and do not necessarily represent the views of Jones Day or its clients.
KENT PIACENTI received his law degree from the University of Virginia, where he graduated Order of the Coif and served as Editor-in-Chief of the Virginia Law Review. Kent is a trial and appellate litigation associate in the Dallas office of Vinson & Elkins LLP. Any views expressed in this publication are solely those of the authors and do not necessarily represent the views of Vinson & Elkins LLP or its clients. KATHERINE WALKER earned a PhD in sociology from the University of Massachusetts, Amherst, and currently teaches at Virginia Commonwealth University’s University College. Her research interests are in cultural sociology, identity, and collective memory.
13. Both the plaintiffs and the proponents tried to frame the Perry case as a battle for civil rights: they gave press conferences in front of the American flag, emphasized families and children, and spoke about freedom. The plaintiffs also downplayed symbols such as the rainbow flag that
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