Speak Now

Speak Now: Marriage Equality on Trial is a 2015 work of non-fiction by American legal scholar Kenji Yoshino. Combining scholarly analysis with personal memoir, Yoshino discusses the landmark case of Hollingsworth v. Perry, in which a federal judge overturned California’s ban on same-sex marriage. Through a detailed analysis of the case and its context, Yoshino argues that the arguments of Hollingsworth v. Perry constitute “the most enlightening, com­prehensive, and meticulous” conversation about same-sex marriage that the United States’ political system has had to date. The case has personal significance to Yoshino: more or less contemporaneously with the beginning of the trial proceedings, Yoshino married his long-term partner in the first same-sex marriage that the presiding judge had officiated.

Yoshino relates how he came to take an interest in the case. He was well aware of the decision: Judge Vaughn Walker, then chief district court judge for Northern California, had ruled that California’s Proposition 8—which effectively banned same-sex marriage—violated the Fourteenth Amendment. In fact, as an advocate for LGBTQ rights and civil rights more broadly, Yoshino had been concerned about the case coming to trial at all, considering it a premature move that might set back the cause of equal marriage. However, after the conclusion of the trial, Yoshino was intrigued and excited by Judge Walker’s “unusually thorough opinion.” He asked a librarian to retrieve the 3000-page trial record, and he read it from end to end. His conclusion: “It struck me that this was a shining civil rights document that needed to be brought to the public.”

Yoshino values the court record because of its rigor. He argues that under the high standards of legal procedure—and particularly under cross-examination—the position of equal-marriage opponents simply falls apart. He points out that this kind of rigorous pursuit of truth is a far cry from the prevailing political discourse around equal marriage, citing the misleading and provocative ad campaigns that swayed many California voters to back Prop 8: “I want to drive a wedge between the question of where the most democratically legitimate conversation happens, which I think is open to debate, and where the best conversation happens, which I don’t think is open for debate…In media debates, or even academic debates, a smart person can always run out the clock or pivot away from the question and not really have to answer it. Whereas if you’re on the stand, under oath, under penalty of perjury, and you’re being cross-examined for open-ended periods of time, you simply have to answer the question.”



The plaintiff’s legal team comprised super-lawyers Ted Olsen and David Boies, who had squared off against one another in Bush v. Gore. Yoshino suggests that their teamwork “symbolically reunited the two halves of the country.” Certainly, the two skilled strategists make short work of the case against equal marriage, which concentrated on three concerns: “optimal child rearing, the prevention of the dissolution of marriage, and the suppression of irresponsible procreation.”

In a blow-by-blow analysis of the trial proceedings, Yoshino focuses on the ways in which the expert witnesses assembled to argue that case crumbled. In one of the book’s most compelling scenes, Boies backs one of these expert witnesses into a corner so tight that he is forced to admit that it was heterosexuals, not homosexuals, who had deinstitutionalized marriage.

Alongside his account of the trial proceedings, Yoshino relates the significance of same-sex marriage to his own life. He passionately explains how legal decisions in favor of gay rights have transformed his expectations, turning him from a driven, lonely young man for whom “falling in love, marrying, raising children — seemed unattainable,” to a married father of two children. “My own life,” he concludes, “has deprived me of any capacity to be cynical about the law.”



The book’s title refers to the injunction that anyone who knows a reason why a couple shouldn’t marry “Speak now or forever hold your peace.” It’s usually left out of marriage ceremonies, but Yoshino and his husband asked the presiding judge at their wedding to include it to remind everyone present that many Americans feel they do have “just cause” to oppose same-sex marriage.

By extolling the value of Hollingsworth v. Perry, Yoshino also hopes to defend the American institution of the civil trial, which is in decline: “In the 1930s, about 20 percent of civil cases filed in federal courts were resolved at trial; in the 2000s, the figure had plummeted to less than 2 percent.” Yoshino sees the civil trial as a valuable political and educational tool that Americans abandon at their peril. He even argues that the courts should be given more significance in the hashing out of the culture wars’ other great issues, such as gun control and the existence of man-made climate change.

Speak Now: Marriage Equality on Trial was received warmly by critics and academic readers alike. The book was hailed as “a cogent, incisive narrative…captivating” by Kirkus Reviews.