Savage, Supreme Court correspondent for the los angeles times. Host professor Kenji Yoshino you have written a very interesting very thoughtful account of the 2010 trial in San Francisco where to couples challenged californias ban on samesex marriage. This was a trial that neither side wanted. Tell us why you decided to go back and write a book now. Guest at david first of all thank you so much for doing this interview. Its my great pleasure to be here today. I really got into thinking about this trial after chief judge ron walker issued his 136 page opinion with findings of fact on august the fourth of 2010 and i looked at that opinion and as somebody who has been working in the gay rights feel this opinion but different in kind from anything i had seen before. Its just thoughtfulness generally and so i asked my library and to pull the transcript of the trial and she came up with it in 13 volumes 2000 page transcript of the trial in closing arguments. When i first started reading it i had the experience of just falling into the transcript. Its an experience that i think many readers have and perhaps it defines us as readers and not emerging into everyday life until i had turned the last page because i thought this is a conversation that this nation has been struggling to have. This is the most comprehensive the most rigorous, the most thoughtful discussion of the topic that i think we ever had as a nation and the best conversation that we will ever have as a nation as time ultimate Supreme Court decision. Host you know early on in the book you talk about the virtues of civil trials and to some degree there are not many civil trials that were big issues are fought out in a trial. You make a very nice point that a lot of people can go on tv and say things. They can write oped pieces and make different assertions that theres Something Really Nice about a trial. You can get on the witness stand take an oath to tell the truth and then he could crossexamined by the other sites that tell us about the trial is as a process and why it was so important in this case. Guest absolutely. I want to begin where you began which is that the trial is a dying form in the 1930s. About 20 of cases went to trial and several federal court and now the figure is less than 2 in federal court in less than 1 and state courts with regard to civil litigation. So this is really a dying forum and the book is just as much a can to the forum as it is a defense of samesex marriage. What i have discovered is again to your point is that the quality of looking at this trial transcript is different from anything that i have seen before so if you think about certainly a Media Exchange you say one thing and the other side says Something Else and one person can always pivot or run out the clock and the second its over the claims in the counterclaims just hang in the air. To a lesser extent but to a really extent this is true of the other for the other for minucci have this debate whether that be the Public Square or whether thats his legislative hearings are even sadly because im an academic in the academic context when you have an academic debate your Party Opposite or your interlocutor can engage and in avoidance of the question even if you have a written debate with somebody that can sort of lip over or skate over points. Im sure my opponents would say exactly the same thing of me so the criticism is one of the forum rather than particular parties who are participating but when you get to the trial its just a different creature entirely. David i started this without any set of prior so the trial was a good thing or a bad thing that i just noticed that of course the trial is going to be different in kind because before you can take the witness stand as an expert in a trial you have to submit an expert report and then you can have a deposition by the expert report which lasts up to seven hours in which you are rigorously crossexamined with regard to your qualifications to offer a report in the contents of the report itself and if you make it through that hurdle than there is their war dear on the stand which is again a challenge in open court of your qualifications and then after that theres your actual testimony we can be questioned for openended. Of time. As you said you are under oath so you could be challenged as having perjured yourself if you dont tell the truth. You are isolated so there is no lifeline is david boys from the plaintiffs attorney said the trial stand is a lonely place to live and then you can be crossexamined and that last is probably the most important piece of it because as you may know this and all the other worms that i discussed the notion is this and that some point added to determine and point and you can adjust aroundtheclock. Crossexamination not only are you under oath and is the stenographer taking down everywhere that you write that the cross examiner can really ask you anything for islam as he or she wants. So the lawyer who is challenging you can just keep you there and if you try to muddy the waters or allied the point the lawyer can come back and really drill down so again as a plaintiff attorney david voice one of the great trial lawyers not always completely, never completely but to a greater extent than any other form the truth slowly gets pushed to the surface of the interaction so i think that we should elegele is the fact that the trial is a dying form because it gives us a former breaker that is unavailable in any other form. And if i may want to drive a strict wedge because i can hardly hear people saying isnt it better for the democratic process for these conversations to happen in the referendum or the legislature and i guess what i would say to that is i want to drive a wedge between where the best conversation is happening which is clearly in my view in the space of the civil trial and where the most democratically legitimate conversations are happening which arguably is not civil trial. So what i was trying to do in the book was to take something that had occurred in the confines of the courtroom and then write about it write about it so i could airdrop it into these more populous conversations that were happening not only in this country but hopefully looking forward in the 200 nations that do not have Marriage Equality so they dont have to reinvent the wheel. Obviously some things are not going to carry over because there are cultural differences but i do think the strength of this conversation allows people baseline conversation and started at a higher level than they otherwise might have been able to do. Host at trial is a very good way to separate truth from assertion that may not be true. Its a good way to clarify whats true and whats not. Tell us how we got how did this case arise . How did we get there to the trial . Guest the funny thing about it is that the team that brought the suit didnt really want to trial. I think you alluded to this at the beginning of your remarks and the other side didnt want it either. So there you have are two states as couples who are completely heroic individuals so chris perry and a couple in their 40s at the time and jeff cirillo and paul khatami of samesex male couple who were in their 30s at the time were being represented by david boys and ted olson who clashed in the bush versus gore case. And the uniting of these two characters because you really do feel like they have this National Stature now was showing that this wasnt a partisan issue. Almost heal the nation by bringing two back together and saying samesex marriage is not a liberal or conservative issue so they brought it on the part of the plaintiffs. On the other side was Charles Cooper also extraordinarily able lawyer. He goes by chuck. The firm in washington d. C. And he represented the proponents of prop eight aid. Prop 8 was a Ballot Initiative that was enacted by the people of california in 2008 to the same election that originally put president obama in the oval office also was an election in which california voted down samesex marriage and voted in a ban on samesex marriage. Cooper was saying those proponents deserve a lawyer and he was representing them and there was a moment in the early preliminary skirmishes in the courtroom where cooper says olsen took him aside and said look chuck we dont want a scopes trial so neither of us want wants a trial in cooper city were right. Our site is one of trial either so they asked the judge if they could dispense of the trial and get whats known as a preliminary injunction heard and the thing about a preliminary injunction is that its something short of a the final judgment but the key thing about it is that you can appeal it immediately or whats known as an interlocutor he appeal. So theyre hoping to shoot up to the ninth circuit which is the Appellate Court of california and then up to the United StatesSupreme Court in a matter of six months to a year whereas, as we know the trial occurs in 2010 and it doesnt ultimately get to the Supreme Court in 2013 degrees judge chief judge Vaughn Walker insists on the trial. He said there are too many issues of fact that are contested and in order to get to the bottom of those factual disputes you have to put them through a trial so he set three different issues and saw three different controversies. One was about what the nature of marriage was so the plaintiffs are saying theres a fundamental right to marry and the constitution guarantees penned numerous decisions were that the loving versus virginia in 1967 for the 1978 case where individuals are behind in their child payments, childcare payments were still allowed to marry in the 1987 case where prisoners were suing for the right to marry. So the other side was saying well no that in the mental right to marry only applies to heterosexual couples because the whole purpose of marriage is to secure or to bind parents to their biological children so the capacity to procreate is a fundamental aspect of marriage. And the plaintiffs said well we dont think that thats true and in fact when interracial couples or inmates were dead a dads who are trying to access the right to marriage, they werent saying we want inmate marriage. They didnt say we want interracial marriage. What we want is marriage so we are just a new group asking for access to an old right. So von walker looks at that and says theres a controversy about what the nature of institution is so we are going to set that for trial so lets get in a marriage historian to come and testify on the stand. The second bucket headed do with the quality and what level of scrutiny or review should be applied to the reasons that were offered by the proponents. And so under the equal protection clause of the constitution which the home of the equality principle in the constitution there are Different Levels of review or scrutiny so sex gets or gender gets a second level of scrutiny and Everything Else is whats known as rational basis review with very few exceptions. Judge walker said we have never determined at the Supreme Court level whether or not Sexual Orientation gets heightened scrutiny in the way that race or sex to and therefore factors the court told us to look to in those four factors are history discrimination whether not the group has an equal capacity to the gb to society whether the group is marked by an immutable characteristic and whether the group is put away powerless and there are factual disputes about all four of those factors so those are also going to be set for trial. In the third bucket were the reasons that the state said this is not passed with bigotry which would be unconstitutional under the equal protection clause or any kind of animus against gay people. Rather we have strong secular reasons for wanting to bar samesex couples from getting married in those reasons include things like trying to provide the optimal childrearing scenario for children which is children being raised by their biological mother and father number two was we want to repent heterosexual marriage from being quote unquote the institutionalized so that samesex couples are allowed to get married at love all of spillover effects on heterosexual marriages that are a problem. Vaughn walker said to chuck cooper what evidence do you have on the issue that gay people getting married hurts heterosexual marriage and chuck cooper said well we believe that the marriage rate has gone down in the netherlands since 2001 because the netherlands was the first jurisdiction in the world to allow samesex marriages. Vaughn walker judge walker quite rightly said what is your read evidence that back . This is in and spirit of statement you are making to the court. Not a theoretical statement cooper said i will come in today with a presentation on that and at that point judge walker said this needs to be a separate trial as well. Basically all three of those buckets what is the nature of marriage, what is the nature of gay people and do they deserve heightened scrutiny based on their characteristics and then finally has the state offered justifications that are not religious and not based on evidence to justify this ban on samesex marriage so all three of those buckets contained issues of fact and one in the law are known as genuine disputes over material facts such that the case the judge had to go to trial. It wasnt that this is nice to have but there was enough factual conflict and evidentiary conflict that those states need to go to trial. Host they were Reagan Administration lawyers both very nice guys very gracious people. On the opposite side of the case but they are a classic washington Supreme Court lawyer so as you say this case is making a legal argument in San Francisco and skipping to the ninth circuit in coming to the Supreme Court. I think its also interesting you point out in the book the gay right Legal Movement which has been fighting for going on 20 years was not enthused about this case. They really didnt want this case to go forward. Guest thats absolutely right. The real heroes of the Marriage Equality movement are these individuals who are toiling in the vineyard. I give an enormous amount of credit for what they did to clarify through the trial but the trial itself was hugely indebted both in ways small and large to the movement they cant afford to not only were many of the witnesses a product of these decades of litigation. Nancy called with someone who had been groomed in a play by these Movement Lawyers and George Chauncey who testified about the discrimination in the case also gain from the gay writes movements and filing in state court cases that you are absolutely right that going back decades Movement Lawyers like the aclu like the National Center for and rights thought it was too soon so they built this very careful strategy that was going to move statebystate can tell they gotten a Critical Mass of states before they filed in federal court and have the case viable to go to or have a case that was acceptable to being brought up to the Supreme Court level. One thing i should clarify as if you go statebystate even if you are litigating in state court that case cannot cannot go does the Supreme Court so long as you are only bringing claims under the state constitution because state Supreme Courts are the ultimate arbiters of state law. Any good or harm that was done in that state litigation would be contained within the boundaries of the state. So what these Movement Lawyers were doing was to adopt what they called the 10 10 20 strategy and they said what they wanted before they went to the Supreme Court was 10 states with samesex marriage, 10 states with civil unions that were the equivalent of marriage, tim states of recognition in 10 states with nothing. It was never more than a guideline but that was the guideline for when they would be prepared to go to the Supreme Court knowing full well and i is a constitutional scholar endorse this to be Supreme Court is loath to tread too far ahead from Public Opinion so that we see in many of our landmark cases like round versus board of education or lawrence versus texas or in the International Interracial marriage context the Supreme Court is washing out outliers so by the time loving versus virginia was decided in 196734 states had interracial marriage in the Supreme Court was just washing out the 16 states that did not have it yet. At the time lawrence versus texas was decided in 2000. That was the case that said you couldnt ban or criminalize samesex sexual intimacy. Only 14 states have such bans on the books, so 13 states had dance on their books so those were easy for the court to wash out. The scenario of the court doesnt want is the roe v. Wade situation where the court is changing the laws in a major social issue and that is when the court gets backlash as we get this constant pushback that hasnt been resolved to this day. The Movement Lawyers looking at this landscape and at the time its hard to believe this or get your head around this now because as i speak we have 37 states and the District Of Columbia that have samesex marriage so the Supreme Court could easily say we are doing what we did in lawrence and washing out the outliers. But back a