excerpt from "speak now" by kenji yoshino

8/9/2019 Excerpt From "Speak Now" By Kenji Yoshino.

1/13

introduction

EMBRACED BY LAW

married my husband, Ron Stoneham, on August 8, 2009.

Guido Calabresi, a federal appellate judge, performed the er !

emony on his farm in "oodbridge, Connetiut. Guido #as dean

#hen $ enrolled as a student at %ale &a# Shool. 'y the time $ gr ad!

uated in (99), *resident Clinton had appointed him to the Seond

Ciruit Court of Appeals. $ #or+ed for him after graduation as a

ler+, then joined the %ale &a# Shool faulty. e mentored me onthe path to tenure, #hih $ reei-ed in 200. $n 200), $ beame the

inaugural Guido Calabresi *rofessor of &a#. /y husband ribs me

for ha-ing ta+en Guidos name but not his.

Guido too+ me and Ron aside before the eremony. At the time,

Connetiut reogni1ed same!se marriage, but the federal go-!

ernment did not, due to a la# styled the 3efense of /arriage At

435/A6. Guido said7 8%ou0r e the first same!se ouple $-emar ! ried. "hen $-e married ouples in the past, $-e al#ays

said, 'y the po#er -ested in me by the state of Connetiut and

the :nited States of Ameria, $ no# pronoune you marr ied.0 ;o#,

beause of


2/13

2 S P E A K N O W

35/A, $ ant marry you under federal la#. 'ut $ also ant find

it in my heart to treat you differently from any other ouple.< =he

s+in around his blue!gray eyes rin+led #ith la#yerly pleasure. 8So

#hen $ spea+ of the po#er -ested in me by the :nited States of

Ameria, $ #ill be referring to my authority as a federal judge to

marry you under state la#. 'ut the #ords #ill remain the same.<

=hen he hugged us. $ ould feel his heart beating through his

judges robe. $ thought ho# odd it #as to be embraed by the la#.

=he great la# professor Robert Co-er #rote that judges sit atop a

pyramid of -iolene dealing pain and death.< :sually, being

8a p! prehended< by the la# is a terrifying eperiene. %et at that

mo! ment, $ understood marriage as the rare plae #here la# and

lo-e on-er ge.

/arriage is a major life e-ent for most people. %et $ thin+ it

still arries an etra jolt of #onder for same!se ouples. $t runs so

ounter to #hat #e ha-e been told about the li-es possible for us. $

#as born in (9)9, the year of the Stone#all Riots. ad $ been bor na generation earlier, or in a different ountry, my urrent life #ould

be unimaginable. /oni>ue "ittig, born in (9?, #rote in (980

that the heteroseual ontrat #as simple7 8you!#ill! be!str aight!

or!you!#ill!not!be.< *aul /onette, born in (9@?, #rote in his

(992 memoir7 :ntil $ #as t#enty!fi-e, $ #as the only man $ +ne#

#ho had no story at all. $d long sine aepted the fat that

nothing had e-er happened to me and nothing e-er #ould.<Andre# Sulli-an, born in (9), ga-e the gay ommunity more

hope in his indis pens! able (99? #or+ Virtually Normal, #hih

argued for same!se mar ! riage. %et e-en that manifesto ended by

touting ho# the tendeny of gay people not to ha-e families of our

o#n benefited soiety7 8=he displaement of family affetion onto

a broader ommunity also ma+es the homoseual an ideal person

to de-ote him! or herself to a soial institution7 the uni-ersity, theshool, the little league, the 'oy Souts, the hurh, the sports

team.< e onluded7 8Sr ath most of these institutions and

youll find a homoseual or t#o sus! taining many of its -ital

f untions.


3/13

Embraced by Law

$ remember reading Sulli-ans boo+ #hen it #as published. $ had

just embar+ed on my legal areer. "hile $ did not onsiously ta+e

his #ords as a presription for my life, $ reogni1ed that they a p!

tured ho# many epeted me to li-e. %ale #as then onsidered the

$-y #ith the highest gay population 4as one #ag put it7 85ne in

f our , maybe more one in three, maybe me one in t#o, maybe

youB


4/13

the hi--ying. $ finally had not only the permission but also the

pressure to go the #ay $ yearned to go.


5/13

@ S P E A K N O W

$ left %ale in 2008 to mo-e to ;e# %or+ :ni-ersity. $ had

met Ron during a sabbatial -isit to that institution. $ #as in my

late thirties, he in his late forties. =he first thing $ notied about

him #ere his eyesone gray and one gray strea+ed #ith opper

li+ e light brea+ing a storm. $ thought7 This landscape could

keep me indoors. $ felt attrated to him in the most literal sense

$ +ne# $ #ould rather be in the same state as he, the same ity,

the same building, the same room. $ +ne#, >ui+ly, that $ #ould

marry him, if he #ould ha-e me.

Ron and $ are ideologially progressi-e but tem per amentally

onser-ati-e. "e both #anted #hat our parents had modeled f or

uslife!long marriage and hildren. 83on0t #ait,< Guido said dur !

ing our #edding. %ou #ere born to be parents.< "e needed no

enouragement. "e had already started attending sessions of 8/en

a-ing 'abies< at /anhattan0s &esbian, Gay, 'iseual and

=r ans! gender 4&G'=6 Community Center. 5ne reason #e

#anted to get married #as to pro-ide our hildren the protetionsof the institu! tion. "e no# ha-e a daughter and a son.

$ al#ays #ear a suit to teah. A olleague one as+ed #hy. $ said

$ did so out of respet for an honorable profession. e guff a#ed,

obser-ing that most of my students #ould beome big!firm la#yer s

#hose profession #ould onsist of helping orporations #age #ar .

$ remain unrepentant. /y o#n life has depri-ed me of any a pa!

ity to be ynial about the la#. D-ery time $ needed a legal gate toopen, it opened. "hen $ first ame out as gay in the early (990s,

the la# had hanged in most states to deriminali1e seual ats

bet#een men #hen Ron and $ #ished to marry, the la# in Con!

netiut allo#ed it #hen #e #ished to ha-e hildren, surr ogay

and adoption la#s permitted us to do so. =o be sure, those legal

hanges did not happen independently of ultural and politial

transformations. Still, #ithout onrete legal reform, $ might ha-ehad no husband, no daughter, and no son. ;o# it is that life that

seems unimagina ble.


6/13

Embraced by Law ?

hen Ron and $ married, a major legal de-elopment #as

unfolding on the other oast. Eiled on /ay 22, 2009,

hallenged the onstitutionality of Califor!

Perry v. Schwar z eneer

nias *roposition 8, #hih had amended the states onstitution to

limit marriage to one man and one #oman. =he amendment #ith!

dre# e>ual marriage rights from same!se ouples si months af ter

the states supreme ourt had reogni1ed them. =he Perry ase #asdistinti-e beause it assailed a states prohibition of same!se mar !

riage on federal onstitutional grounds. =hat meant the ase ould

reah the :nited States Supreme Court. $t also reated a media

fren1y beause it #as filed by the odd ouple of 3a-id 'oies and =ed

5lson, the superla#yers #ho had s>uared off in !ush v. "ore.

At the time, only four states had legali1ed same!se marr iage.

/oreo-er, a majority of states had in reent years enated or r e!

infored bans on same!se marriage. =he Supreme Court gener !

ally does not tread far ahead of publi opinion. Eor this r eason,

leaders of the major gay!rights organi1ationsmany of #hom $

regarded as friends and olleaguespassionately opposed the suit.

=he mo-ement la#yers #orried that 'oies and 5lson #ould r ush

this ase to a defeat at the Supreme Court. =hey ould then r etur n

to their lurati-e orporate praties, lea-ing the gay!rights la#yer s

to pi+ up the piees. =hose shards ould satter far, gi-en that the

onse>uenes of an ad-erse ruling might not be onfined to mar !

riage. As gay!rights ad-oates had #itnessed in the aftermath of a

de-astating loss before the high ourt in (98), the onstitutional

logi that justifies disrimination in one area an be etended by

lo#er ourts, state offiials, and othersto fuel disrimination in

different realms. :ndoing the effets of an ad-erse ruling ould also

ta+e yearsperhaps deades. D-en if a ne# majority belie-es that

a ase #as #rongly deided, the Supreme Court is loath to o-err ule


7/13


8/13

Embraced by Law I

$ -i-idly reall reading the three!thousand!page transript in the

ase. $t is the eperiene many readers ha-eperhaps the eper i!

ene that defines us as readersof falling into< a tet and not

resurfaing into e-eryday life until #e ha-e turned the last page.

3ra#ing on months of pre!trial proeedings 4and years of ar gu!

ments ad-aned by &G'= ati-ists6 the transripts aptured the

best on-ersation $ had seen on same!se marriagebetter than

any legislati-e hearing, any aademi debate, or any media e!

hange. "hat distinguished it from these other dialogues #as the

intelletual rigor of the proeedingsthe submission of epert r e!

ports, the daylong pre!trial depositions of the #itnesses, the testi!

mony under penalty of perjury, the reord that s#allo#ed e-er y

#ord in its ma#, and perhaps abo-e all the ross!eamination of

#itnesses on the stand. =he transript #as a luminous i-il!r ights

doument. Any resentment $ felt to#ard 'oies or 5lson e-a por ated.

/y intent is not to re-isit the shop#orn dispute o-er #hether

ourts or legislatures or diret -otes by the people are the best plaeto resol-e the >uestion of same!se marriage. As a pratial matter ,

that argument is moot. Around the #orld the debate is ourr ing

and #ill ontinue to ourin all these forums. /y >uestion is

#here the best on-ersationmeaning the most enlightening, om!

prehensi-e, and metiulous oneis happening. $n this instane,

the best dialogue too+ plae in the ourtroomand more br oadly,

through the entire ad-ersarial proess that ulminated in Fudge"al+ers tr ial.

$mmediately after Fudge "al+ers deision, 'oies etolled the

trial form in an inter-ie# on #ace the Nation. $n politial de bates,

he argued, it #as too easy to thro# around opinions, appeal to

peoples fear and prejudie,< and ite studies that either dont

eist or dont say #hat you say they do.< $n a trial, he obser-ed,

8you0-e got to stand up under oath and ross!eamination,< #hih

made it impossible for opponents of marriage e>uality to pre-ail

based on misrepresentations, speulation, and hyperbole. e

ontinued7


9/13

8 S P E A K N O W

"hen they ome into ourt and they ha-e to support those

opinions and they ha-e to defend those opinions under oath

and ross!eamination, those opinions just melt a#ay. And

thats #hat happened here. =here simply #asnt any e-idene.

=here #erent any of those studies. =here #erent any em pir ial

studies. =hats just made up. =hats jun+ siene.

And its easy to say that on tele-ision. 'ut a #itness stand is

a lonely plae to lie. And #hen you ome into ourt, you an0t

do that. And thats #hat #e pro-ed. "e put fear and pr ejudie

on trial, and fear and prejudie lost.

Fournalists #ho o-ered the trial ehoed 'oiess theme. "r iting

for the New $orker, /argaret =albot a+no#ledged the

on-en! tional #isdom that the ulture #ars should be fought out in

the legislature, the ballot bo, or e-en the blogosphere. o#e-er,

she obser-ed that the Perry trial sho#ed that the ourtroom ould

be a lassroom #here the -alues of thoroughness, preision ins peeh, and the obligation to reply ha-e a #ay of laying bare the

f undamen! tals of ertain rhetorial positions.< /ore reently,

la# pr ofessor 3ale Carpenter ritii1ed 'oies and 5lson and

disputed their as! sessment of Perrys import but lauded the trial

itself, ontending that it had re-ealed 8the thin logi,

unsubstantiated assertions and stereotypes that undergird the

opposition to same!se marr iage in a #ay that only litigation,inluding testimony subjet to r oss! eamination under oath, an

do.<

Suh tributes are partiularly important no#, #hen the i-il

trial is >uietly going the #ay of the dodo. $n the (90s, about 20

perent of i-il ases filed in federal ourts #ere resol-ed at tr ial

in the 2000s, the figure had plummeted to less than 2 perent. *ar t

of the reason is that ourts ha-e signifiantly epanded pr e!tr ial proedures, gi-ing litigants substantial opportunity to interr ogate

#itnesses, re-ie# their opponents0 douments, and ondut f or mal

settlement negotiations. Some sholars elebrate this de-elopment

as a triumph of judiial effiieny, and indeed it is. /any benefits


10/13

Embraced by Law 9

of ad-ersarial litigation are no# a-ailable #ithout the epense and

delay assoiated #ith trials. 'ut nothing aptures the full range of

a trials ad-antages other than a trial itself. "e must onfront #hat

is lost in surrendering this great Amerian tradition. As muh as

anything, this boo+ is a paean to the i-il tr ial.

=he proponents of *rop 8, #ho #ere the effeti-e defendants in

the suit, objeted to the trial on se-eral grounds. At -arious points

in the proeedingsand after#ardthey ontended that the dis!

puted soiologial issues ould not be resol-ed through the judiial

proess, that four of their #itnesses deided not to testify out of

onerns for their safety, and that the judge #as biased beause he

#as gay and in a same!se relationship. $ #ill address these r iti!

isms as they arose in the proeedings. Eor no#, let me say that

ompared to a *latoni ideal of disourse, the trial #ill fall shor t.

Compared to the real alternati-es, it shines.

initially tried to #rite this boo+ in my onstitutional la# pr o!

fessor< -oie. %et #ithholding my personal reations made the

narrati-e feel inomplete, e-en slightly dishonest. $ ould not ha-e

been more affeted by the issues in this ase. 3uring the f our !year

span bet#een the filing of Perry and its ultimate resolution, R on

and $ married, #elomed our daughter into the #orld, and then

#elomed our son. "hen #e tra-eled to the Supreme Court on/arh 2), 20(, to hear oral arguments in the ase, #e #ere r i-en

#ith aniety. =hose ner-es stemmed as muh from the ho+ ing

pani of ha-ing left our young hildren in a different ity for the

first time as they did from the ase. And of ourse, my par ental

and professional anieties #ere intert#ined#hether #e #ould

be able to offer ruial protetions to our hildren ould be deter !

mined by the Courts deision.Some may >uestion #hether an indi-idual #ith suh a sta+e in

the outome ould e-aluate the trial dispassionately. "hen $ on!

sider that objetion, $ reall a moment on the first day of tr ial.


11/13

(0 S P E A K N O W

'oies as+ed plaintiff *aul Jatami if being granted the right to

marry #ould hange his relationship to his ommunity. 5 pposing

ounsel lodged an objetion, arguing that Jatami #as just a plain!

tiff, not an epert. Jatami stood his ground #ith a ri de oeur 7

8$ ant spea+ as an epert. $ an spea+ as a human being that0s

li-ed it.< $ spea+ in this boo+ not only as an epert in onstitu!

tional la# but also as a human being #ho has li-ed it. Fust as our

life eperiene may dull our faulties of pereption, so too it may

sharpen them.

=o supplement my o#n perspeti-e, $ rissrossed ;orth Amer !

ia onduting o-er forty inter-ie#s #ith ounsel, #itnesses 4in!

luding #ithdra#n #itnesses6, and other sta+eholders on both sides

of this debate. *ieing together this pu11le has been one of the sig!

nal pleasures of my professional life. $t #as also an oasion f or

personal transformation, as $ found myself onneting at some le-el

#ith e-ery person #ith #hom $ spo+e, e-en #hen #e disagreed -e!

hemently about the >uestion at hand./any indi-iduals belie-e the same!se marriage debate #ill

soon ome to a lose. "hile the Supreme Court #ill ma+e a de!

ision affeting all fifty states in the net fe# months, the idea

that it #ill end the debate is faniful. Resistane to the Su pr eme

Courts (9)I deision stri+ing do#n bans on interraial mar !

riage endured long past that ase. And if #e ta+e a more global

perspeti-e, same!se marriage is urrently a-ailable nation#idein fe#er than t#enty out of some t#o hundred ountries, #hile

same!se seual ondut is still illegal in more than se-enty. $n

eight ountries, gay se is punishable by death. $ epet to be ar !

guing for marriage e>uality for the rest of my life, during #hih

time the -alidity of my o#n marriage #ill fade in and out li+e a

radio signal depending on #here in the #orld $ am ma+ing the

ar gument.At the same time, the debate seems mature. ;o# that the ar !

guments ha-e been artiulated, parsed, and refined, #e an dr i-e


12/13


13/13

(2 S P E A K N O W

transpired there #ithout ending #ith a more fa-orable -ie# of

same!se marriage. 'eause fe# #ill read the full transript, this

boo+ see+s to bring the trial to the reader. Clarifying the +ey issues

in an inflamed soial ontro-ersy is something trials an do for us.

/emoriali1ing suh trials is #hat #e an do for them.

excerpt from "speak now" by kenji yoshino

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