In recent years, trials have played an important role in shaping the legal definition and cultural understanding of marriage in the United States—mostly notably with last year’s Supreme Court ruling in Obergefell v. Hodges, the case that legalized same-sex marriage across the country. But have such legal events and the cultural conversation around marriage also shaped our understanding of the purpose and value of trials? They seem to have done so for Kenji Yoshino, the Chief Justice Earl Warren Professor of Constitutional Law at NYU Law School and author of Speak Now: Marriage Equality on Trial.
Speak Now is Yoshino’s detailed recounting of Hollingsworth v. Perry—the 2009 California federal district court trial over Proposition 8. (Proposition 8 was a ballot initiative banning gay marriage in the state of California that passed in 2008.) Yoshino, himself a gay man with a husband and two children, masterfully condenses what happened before, during, and after the trial into a warm, accessible, and thought-provoking presentation of the events. While primarily a scholarly work of legal history, Speak Now is also a literary work of art and rich with important philosophical questions and thoughts regarding constitutional law and legal theory. It also reads as the product of a meticulous labor of love.
Yoshino’s account of what he says he believes “will stand the test of time as one of the most powerful civil-rights trials in American history” (283–284) begins with the events surrounding his own marriage. Shortly thereafter, Yoshino turns to the filing of the suit that would ultimately lead to the 12-day Perry trial argued before Judge Vaughn R. Walker, who at the time served as Chief Judge of the United States District Court of the Northern Distinct of California. The presentation of these two events sets the stage for the remainder of the book, which Yoshino says is about two ceremonies—the wedding and the trial.
Speak Now intertwines not only marriage and trial, but also the descriptive and the normative. Yoshino recounts the relevant events preceding, during, and after the trial and displays a strong preference for letting those who were involved in the trial speak for themselves through a consistent and ample use of quotes from a wide variety of sources. But Speak Now does not merely describe the events. It also contains several types of normative force, the presence of which enhances the book.
A rationale for the importance of the descriptive task of the book is given early on when Yoshino writes: “Because few will read the full transcript, this book seeks to bring the trial to the reader. Clarifying the key issues in an inflamed social controversy is something trials can do for us. Memorializing such trials is what we can do for them” (Yoshino, 12). Yet even within this statement specifying a reason for memorializing the trial (which may itself be a normative task in a sense), in Yoshino’s comments on what trials can do we also get a hint at some important theses about the nature of trials argued for in the book. (What these theses are will hopefully become clearer later on in this review.)
Before proceeding with some of the more interesting philosophical aspects of Yoshino’s text, it will be useful to have a brief outline of the events recounted in the volume.
The 2008 ballot initiative, Proposition 8, resulted in an amendment to the state’s constitution limiting marriage to one man and one woman. This amendment “withdrew equal marriage rights from same-sex couples six months after the state’s supreme court had recognized them” (Yoshino, 5). The Americans Foundation for Equal Rights (AFER), filed a suit on behalf of two same-sex couples—Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo—challenging the constitutionality of Proposition 8, in California’s Northern District. Notably, heading up the plantiffs’ legal team were the lawyers who had been on the opposing sides of Bush v. Gore, David Boies and Ted Olson. On the opposing side, California’s attorney general and governor declined to defend Proposition 8, resulting in the proponents of the measure serving as the defendants in the case.
Initially, both the plaintiffs and proponents wanted to avoid a trial, but Judge Walker, the federal district judge who had been randomly assigned to the case, had differing inclinations, which ultimately prevailed. The result was a 12-day trial and a ruling from Judge Walker, in which he struck down the state ban on same-sex marriage in a 136-page decision containing over 80 findings of fact. The proponents appealed and lost in the US Ninth Circuit Court of Appeals. The case eventually made its way to the US Supreme Court, where it was decided that the proponents didn’t have standing to file the appeal, thus effectively restoring Judge Walker’s ruling, but keeping the matter of precedent limited to the district court.
I will now put forward and briefly assess the major pro-trial argument that Yoshino offers in the book. By a pro-trial argument (my term, not Yoshino’s), I mean roughly an argument advocating the more extensive use of trials. Yoshino weaves in a case for a specific pro-trial argument in the book. As background for understanding this argument, Yoshino introduces readers to the technical distinction between adjudicative and legislative facts.
Adjudicative facts are “facts germane to the specific dispute, which are often best developed through testimony and cross-examination” (Yoshino, 74, quoting Richard Posner). Yoshino give as examples of adjudicative facts “whether a driver exceeded the speed limit, whether a signature was forged, or whether a person read a contract before he signed it” (Yoshino, 74).
Quoting Posner again, Yoshino characterizes legislative facts as “facts relevant to shaping a general rule” and as facts more often “reported in books and other documents not prepared specially for litigation or refined in its fires” (Yoshino, 75). Yoshino refers to these as “broader claims about the world” and gives as examples “whether underage drivers are more likely to speed, whether forged signatures are easy to detect, or whether people generally sign standardized contracts without reading them” (Yoshino, 74).
Part of the significance of this distinction is that “[t]he appellate courts have generally come to this sensible conclusion: that contested adjudicative facts must be subject to trial, while contested legislative facts need not be (which, of course, is different from saying that they may not be.)” (Yoshino, 75). The proponents in the Perry case took a stronger view on the matter, arguing “that facts about the nature of marriage, like all legislative facts, were not appropriate for trial” (Yoshino, 75). In taking the case to trial, Judge Walker showed that he disagreed. In praising the benefits of such a trial, Yoshino shows that he disagrees as well.
Unexpectedly, Yoshino uses the Perry trial to show by example the benefit of taking cases surrounding controversial social issues to trial. Those benefits, for Yoshino, seem to come largely from the ability of trials to make the relevant facts of the matter clear. In pressing his recurring theme of this power of trials Yoshino writes that “[s]tatistical claims that circulate for years in the mainstream political arena can be refuted in a matter of minutes on the stand” (Yoshino, 178) and that “[t]he great strength of the Perry trial, and of our adversarial system generally, is an obsessive commitment to factual accuracy” (Yoshino, 267). An important upshot in the case of the Perry trial was that “the trial record offered an unparalleled discussion of the civil-rights issues of our time” (Yoshino, 267). With this in mind, we can see more clearly the significance Yoshino attaches to the record developed through the trial and the significance of memorializing what occurred.
At many points in Speak Now, Yoshino acknowledges the importance of the right story or personal account being told in order to make a point in a way that cold hard facts and expert witnesses alone can’t accomplish. In a way, Yoshino employed this strategy himself in making his case for trials. The reader experiences in a much more vivid way the benefits of the trial by hearing the stories of the trial. The effect (at least in my case) is that it is hard not to feel a strong support for Yoshino’s final conclusion about trials when he closes the main text of the volume with the following:
So let me pre-commit myself: Next time such a legal controversy arises that implicates thorny ‘legislative’ facts, let it go to trial. Let us try whether women regret their abortions, whether guns deter crime, or whether climate change is occurring. And let the product of the trial be disseminated throughout all forums in which the debate is taking place. For me, the Perry trial explored not one, but two civil ceremonies—the ceremony of marriage and the ceremony of the trial. I have come to see that 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. (280)
It’s worth pausing to ask what the scope of Yoshino’s claim in advocating for trials is. It’s limited in one sense to trials dealing with important controversial social issues. But there is another, less obvious, way in which the scopes seems to be limited. As I read it, Yoshino’s primary pro-trial claim seems to contain an implicit contrast class—let there be a trial as opposed to the matter being settled judicially in a pre-trial manner. On this reading, it’s a claim about what we should do for cases that already will be handled by the judicial branch in some way or another.
Yoshino notes the increasing percentage of litigation that is settled out of the courtroom and the increasing reliance on things like amicus briefs, in which those submitting the briefs are not put under examination in the courtroom. For Yoshino, much of the value of well-run trials seems to be that unlike pre-trial settlements and other methods of non-trial adjudication, cases that go to trial result in arguments being questioned and pushed in a way they wouldn’t be otherwise and in a way that is conducive to identifying the facts and providing a record of those facts.
A pro-trial claim restricted in this way still leaves us with a number of other important legal questions concerning the value of trials. When is it appropriate to litigate in the first place? How do we balance judicial activism with judicial restraint? And what is the proper balance of power between the legislative and judicial branches? To the extent that Yoshino is also making claims about these additional questions (and on a reasonable reading of the book, it would seem that to some extent he is), the narrative and arguments he offers cover a smaller slice of the total set of considerations relevant to addressing such questions. But that is not offered as a criticism, considering Yoshino doesn’t claim to offer a look at the total set of considerations relevant to these questions.
Furthermore, I don’t want to suggest (nor do I think Yoshino would want to suggest) that the kind of interwoven narrative and argument found in Speak Now removes the need for a more cold-blooded and academic sort of argumentation about the role of trials and when a trial should be had. In fact, Yoshino briefly discusses some of the work occurring in such debates (e.g. Yoshino 275-9). Such arguments clearly have their place too—and Yoshino’s inclusion of them in the volume would seem to make apparent his agreement on this point. But that doesn’t remove the power of the narrative of the trial to provide a live example of the good a trial can do and the power a trial can have. Thus, at least for the moment, I find myself convinced, and, like Yoshino, when it comes to the next great legal controversy turning on key legislative facts I also say “Let there be a trial.”
Mark Satta is a philosopher, writer, and law student. He lives in Massachusetts.