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The Truth in the Transcript In his book Speak Now, Kenji Yoshino celebrates Hollingsworth v. Perry.

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MSNBC host Rachel Maddow joined Kenji Yoshino on April 29 to analyze oral arguments held the previous day in the same-sex marriage cases at the US Supreme Court.

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SPE AK NOW : CROWN PUBLISHING GROUP

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n June 26, 2013, the Supreme Court The Supreme Court ultimately disposed of Perry decided United States v. Windsor, strik- on procedural grounds, dodging the substantive ing down a provision of the Defense of constitutional issue while letting same-sex marMarriage Act that barred the federal gov- riage proceed in California. Yoshino’s book revisits ernment from recognizing same-sex marriages. The not only the arguments but also the human dramas decision triggered a sea change. Post-Windsor, courts that animated them throughout the 12-day trial. (In swept away same-sex marriage bans in 22 states. the book he also intersperses personal reflections Within the next two years a majority—36 states on his own life; between the filing of the case and and the District of Columbia—recognized same- the Supreme Court’s decision, Yoshino married Ron sex marriage. Stoneham, and the couple welcomed two children.) On t he second Yoshino draws a sharp contrast between the riganniversary of Wind- orous trial proceedings and what he deems the missor, t he Supreme leading ad campaigns that convinced 52 percent of Court held in Oberge- voters to say “yes” to Proposition 8. “I want to drive fell v. Hodges that a wedge between the question of where the most democratically legitimate conversation happens, sa me -sex couples have a constitutional which I think is open to debate, and where the best right to marry. conversation happens, which I don’t think is open W in d s o r ’s f a r - for debate,” Yoshino says. reaching impact not“In media debates, or even academic debates, a withstanding, Kenji smart person can always run out the clock or pivot Yoshino, Chief Justice away from the question and not really have to answer Earl Warren Profes- it,” he adds. “Whereas if you’re on the stand, under sor of Constitutional oath, under penalty of perjury, and you’re being Law, maintains that cross-examined for open-ended periods of time, you another case, decided simply have to answer the question.” on that same summer Yoshino claims that, faced with such scrutiny, the day—Hollingsworth v. Perry—deserves to have as Proposition 8 proponents’ arguments against samestrong a legacy. In his book Speak Now: Marriage sex marriage withered, and, under cross-examinaEquality on Trial, Yoshino argues that the Perry tion, so did their experts. For example, proponents trial was “the most rigorous, comprehensive, and argued that same-sex marriage would lead to the thoughtful conversation we’ve ever had in any forum “deinstitutionalization” of marriage by robbing it of on same-sex marriage in the country.” Because the public regard and commitment. But during crossexamination by plaintiffs’ lawyer David Boies LLM trial was able to strip away half-truths to get at the facts of same-sex marriage, he says, the “next great ’67, one of the proponents’ expert witnesses admitted legal controversy” should be tried in the courtroom, that marriage has already been deinstitutionalized. not hashed out by politicians or even decided via Given our justice system today, the odds were any other legal process without trial. against Perry ever seeing the inside of a courtroom; Yoshino came to the trial record shortly after less than two percent of civil cases filed in federal August 4, 2010, when Vaughn Walker, the now-retired court make it to trial, according to the American chief judge of the US District Court for the Northern Bar Association. Speak Now, then, serves a District of California, ruled that California’s Prop- dual purpose: It is a paean to the osition 8, which amended the state constitution to dying civil trial and a vehicle to define marriage as between a man and a woman, vio- convey the Perry arguments, in a lated the equal protection and due process clauses of digestible form, to readers. the 14th Amendment to the US Constitution. Five years after Perry, Yoshino Intrigued by the judge’s “unusually thorough stands by his commitment to the opinion,” Yoshino had a librarian pull all 13 volumes power of the trial record: “Someof the trial record. After blasting through the 3,000- thing happened in those 12 days in page transcript, he says, “it struck me that this was that tiny courtroom in San Frana shining civil rights document that needed to be cisco that deserves to have a life.” brought to the public.” Gina Rodriguez

Profile for NYU School of Law

NYU Law Magazine 2015  

The annual magazine from NYU School of Law.

NYU Law Magazine 2015  

The annual magazine from NYU School of Law.

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