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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 Yoshinos 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 Courts decision in this case, written by Justice Kennedy, and the dissenting opinions by
Justices Roberts, Scalia, Alito, and Thomas. How is the Courts 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 judges 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 Walkers 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. Yoshinos 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 Yoshinos 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 Yoshinos experiences in writing this book and also
the multiple times people questioned Judge Walkers 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 plaintiffs 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 movements 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 guides 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 Universitys 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

notes

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