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Going to the Chapel . . . Legally

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‘Speak Now: Marriage Equality on Trial’ by Kenji Yoshino
by Terri Schlichenmeyer

SpeakNowBookCoverThird finger, left hand. If you’re wearing a ring there, chances are that it means more than a bit of metal around your digit—one that is undoubtedly more precious than the sum of its parts. It means a commitment of marriage—if indeed you can get married, because some still cannot. And in the new book Speak Now: Marriage Equality on Trial by Kenji Yoshino, you’ll read about a federal trial that impacted many an engagement.

Just before Kenji Yoshino married his husband, Ron, in 2009, the officiant pulled the couple aside and reminded them that, though they were really no different than any other two people in love, he could not marry them under federal law because of DOMA. As they said their vows in Connecticut, another legal drama on the other side of the country was just beginning.

Only four states recognized same-sex marriage in 2009, and California wasn’t one of them. In 2008, California voters had passed Proposition 8, effectively amending its constitution to allow legal marriage only between opposite-sex couples. A legal challenge to Prop 8 was filed in California in May of 2009, which ultimately opened the doors for an unlikely pair of lawyers to take the issue to the U.S. Supreme Court.

Attorney Ted Olson was famous for helping to put George Bush in office in 2000, and had worked in Ronald Reagan’s Justice Department. Though Olson was known for his conservative stance, he was a friend of David Boies, a renowned, more liberal litigator. They seized the opportunity to argue this important case together, and began laying the foundation for it.

But their teamwork wasn’t the only unusual twist in Hollingsworth v. Perry: the judge assigned to the case was known to be gay. Lead counsel for the defense of Prop 8 had once flirted with a career in professional baseball. Both sides tried to keep direct mentions of sex out of the courtroom. In the end, children played a large part in the arguments. And, though neither side wanted it, the case went to trial.

That last point, says author Kenji Yoshino, came as the biggest surprise. Issues such as same-sex marriage very seldom go to trial; both parties usually try to avoid it long before things ever get that far.

But Yoshino’s fascination—and the in-depth examination he offers about Hollingsworth v. Perry—becomes a mixed bag in Speak Now. On one hand, there are heartfelt examples of people who would most benefit from the defeat of Prop 8, as told from the exciting perspective of a major courtroom drama; on the other hand, there’s a lot of legalese here that is only partially explained in layman’s terms. We’re treated to detailed, sometimes happy human-interest stories (including the author’s own), followed by information that will send many readers scrambling for a legal dictionary. Oy.

Still, despite that near-obstacle, I think this book is worthwhile—if for no other reason than the significance of the case it highlights. Read carefully, don’t rush yourself, have a legal reference source handy, and Speak Now will be a book you won’t want to leave on the shelf.

Terri Schlichenmeyer has been reading since she was three years old, and she lives on a hill in Wisconsin with two dogs and 11,000 books.

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Terri Schlichenmeyer

Terry Schlichenmeyer is a regular contributor to OutSmart Magazine.

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