next booktv "after words." professor kenji yoshino looks at the case hollingsworth v. perry which consider the constitutionality of propositon eight, the law that presented the right of same-sex couples to marry in california. he is interviewed by david

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 california's ban on same-sex 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. it's 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. it's 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. it's 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 op-ed pieces and make different assertions that there's something really nice about a trial. you can get on the witness stand take an oath to tell the truth and then he could cross-examined 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 same-sex 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 it's 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 that's his legislative hearings are even sadly because i'm 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. i'm 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 it's 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 cross-examined 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 there's your actual testimony we can be questioned for open-ended. of time. as you said you are under oath so you could be challenged as having perjured yourself if you don't tell the truth. you are isolated so there is no lifeline is david boys from the plaintiff's attorney said the trial stand is a lonely place to live and then you can be cross-examined 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 around-the-clock. cross-examination 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 isn't 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 air-drop 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 don't 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. it's a good way to clarify what's true and what's 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 didn't really want to trial. i think you alluded to this at the beginning of your remarks and the other side didn't 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 same-sex 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 wasn't a partisan issue. almost heal the nation by bringing two back together and saying same-sex 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 same-sex marriage and voted in a ban on same-sex 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 don't 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 what's known as a preliminary injunction heard and the thing about a preliminary injunction is that it's something short of a the final judgment but the key thing about it is that you can appeal it immediately or what's known as an interlocutor he appeal. so they're hoping to shoot up to the ninth circuit which is the appellate court of california and then up to the united states supreme court in a matter of six months to a year whereas, as we know the trial occurs in 2010 and it doesn't 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 there's 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 don't think that that's true and in fact when inter-racial couples or inmates were dead a dads who are trying to access the right to marriage, they weren't saying we want inmate marriage. they didn't say we want inter-racial 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 there's a controversy about what the nature of institution is so we are going to set that for trial so let's 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 what's 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 same-sex 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 same-sex 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 same-sex 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 same-sex 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 wasn't 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 it's 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 didn't want this case to go forward. >> guest: that's 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 can't 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 state-by-state 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 state-by-state 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

same-sex 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 -- inter-racial marriage context the supreme court is washing out outliers so by the time loving versus virginia was decided in 196734 states had inter-racial 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 couldn't ban or criminalize same-sex 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 doesn't 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 hasn't been resolved to this day. the movement lawyers looking at this landscape and at the time it's 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 same-sex marriage so the supreme court could easily say we are doing what we did in lawrence and washing out the outliers. but back at the time the suit was filed only four states have

same-sex marriage and so the movement lawyers thought this is too soon that we are doing an end run around the strategy that had built up over years so there was a lot of infighting with regard to plaintiffs but just to be clear there was a lot of infighting on the other side as well for individuals like the liberty counsel were seeking to intervene in the case in order to make more radical arguments then cooper and his inside the beltway team so arguments are squarely based on religious bounds squarely based on negative portrayals of sexual orientation of gabe -- gay people. >> host: there are so many fascinating elements of this case but reading back over the history of the struck by the same thing that gay writes lawyers in 2,002,009 i think thought to be blunt about it if we get this case to the supreme court to sin we could lose and

it's a bad thing to get it up so quickly. ted olson and david boies wanted to move quickly but then judge walker by holding the trial to some degree slowed things down. it says that the trial itself didn't hop skip and jump to the supreme court. the trial not only air the issues as you said but allow them to clarify the truth in the fact of the matter. it also slowed things down a little bit, didn't it? >> that's absolutely right. by having the trial or the case moved to add to that one of us on appeal to the ninth circuit there was a tricky procedural issue that the ninth circuit kicked over to the california supreme court so that added more time as well. so through some fertility that a plaintiff's lawyer could not have foreseen and in fact did not intend because they wanted to as you say shoot up to the

supreme court as quickly as possible the case was slowed down dramatically. so to put a finer point on it what the defense lawyers were worried about is that it would zoom up to the supreme court of the supreme court wouldn't be ready with only four states with same-sex marriage which is something they very rarely do on a hot social issue like this. they would render an adverse decision and it would be very difficult to get the adverse decision reversed because for example i was talking about the lawrence case earlier. the lawrence case which struck down -- of the gay rights movement. it said it's perfectly fine for states to have these statutes and perfectly constitutional for them to do that and it took 17 years for the movement lawyers to overrule that case or to get

that case overruled by the supreme court. i was asked by one of the movement lawyers matt kohl's who is one of the greatest heroes of the movement and mary bonauto who argued the case of the supreme court and evan wilson and many other individuals but i once asked matt kohl's whether or not the movement lawyers were overly conscious because they have gotten burned by bowers and hours they thought they would win it. they lost by one vote and justice powell split right down the middle to the very end like he was very driven about what the outcome of that case should be but after bowers was on the books it was a hard thing for a movement lawyer. i'd thought that might make him too skittish and matt kohl's politely but sternly said that to me i think we were rightly cautious after being burned by bowers and that way because you

realize that once you get to the supreme court that this is really ultimate stakes politics. when the supreme court rendered a bad decision 17 years as a relatively short timeframe for it to overrule a major decision like ours. in fact if you look at how long it took brown to overrule plessy versus ferguson it was something more on the order of 58 years because it's 1896 to 1994 so we could really have seen a couple of generations go by without a pronouncement from the supreme court that hopefully we are going to get in june that same-sex marriages constitutionally required in every state. >> host: you mentioned the history of the brown case and loving and when i started doing this job it never dawned on me it's an odd thing for the supreme court in 1954 to say in the strongest possible terms that racial segregation is unconstitutional but yet the justices did not want to touch the issue of inter-racial marriage. they passed on in 1955 and their

view was it would be too much on the country to force an end to inter-racial marriage. by the time they did it in 1967 was almost a nonissue. as you said there were only a dozen or so states that continue to enforce those laws but it's an interesting thing to see how views on social issues change in what might seem as too soon and abrupt in one era 10 years later seems like it's a matter of common sense and is uncontroversial and of course on this issue everyone says everyone who was alive and talks about it says it's been remarkable the change in public views, public sentiment. as you said to go back a couple of years there were few states that had gay marriage and they seemed to be on the frontier in a few years later where three-quarters quarters the country and there are just a few holdout states really. as you said i thought there were really two big interesting great questions here. what is marriage all about and

secondly how should the law view gay and lesbians and what is marriage and who should be part of it and what is the purpose of marriage? chuck cooper made this argument that is still being voiced in the supreme court. if marriage is about biology and responsible procreation can you tell us about that argument and why they made it? just go the argument is that marriage is really about channeling heterosexual couples into responsible procreation and into taking care of their biological offspring. so what they're focusing on is what is the one unbridgeable gap between an opposite sex couple and a same-sex couple and that unbridgeable biological gap is the idea that heterosexual couples can procreate and

internal to the union where is no same-sex couple can procreate internal to the union so what they said was our vision of marriage is a vision in which marriage exists as an institution in order to bind those two individuals together because they are the individuals who are capable of bringing new life into the world and without marriage it's too easy for them to split up even with marriage it's too easy for them to split up. we want the kind of social glue that binds them to each other and indirectly binds them to their children. so the contrast of this child centric vision of marriage against marriage as a simple emotional commitment between two adults. the plaintiffs on the other hand start really differently. they said really two things i think in response to that. one is to say that marriage has many many purposes other than

simply binding parents to their biological children. the historian to whom i alluded earlier testified on the very first day of the trial. she was the first expert witness after the four plaintiffs testified and i think that they did that on purpose because what they wanted to do is to say the 64,000-dollar question here is what is marriage. so she laid out this notion of marriage and said first of all marriage is a change bullet institution than you may think so we have polygamist marriages and we have coverage are. we have many different traditions of marriage in the world and so let's not a centralized marriage of having been one thing everywhere and always but even in the marriage tradition in this country she said it's like i feel like everyone is touching a different part of the elephants because

certainly the desire to protect children is one part of marriage that marriage is also about creating households. so if you think about why marriage is important that creates a legal institution that operates as a buffer between the individual and the state and both sides get something out of the creation of that intermediate buffering institution of the household of the family. she says the individual get something out of it as they can create these really intimate emotional and associated ponds that garner some protection and respect from the states of inc. about testimonial privileges in the trial were an individual doesn't have to testify against their spouse. but people always say you can contract around marriage and it's due the contracts and benefits of marriage that's in fact not the case because insofar as the state is above the camp make a state respect

your contract review can't enter into a contract with the state unless the state -- from the state's perspective there's a great benefit in having the households because households provide a fallback for indigo souls when they get into trouble and they don't come directly to the state. if an individual becomes disabled and that person will lean on the other person in a marriage rather than going to this day. we know that say if i become disabled my spouse is responsible as the first-line of defense and it's only after that it would go to the state. so there's a great benefit in having this intermediating structure called the household between the individual and the state. so argument number one dichotomy was there are lots of other reasons that procreation provide marriage and the other major argument she made was to say let's keep very careful hearing

characterizing straight couples as inherently procreative and same-sex couples as not because it's not as if couples are infertile so many gay couples are raising children and many straight couples are not raising children. many straight couples are indeed fertile so one of the things that came up very early on in the exchanges between the judge and cooper was the judge said the last marriage i performed was between a 70/70 open eight-year-old so should i not have married him because of the purpose of marriage is procreation they served they were going to serve that function and cooper said no it's not about you weren't wrong to do that because the man in that relationship doesn't outlive his procreative capacity so therefore it finds inside the marriage but to the point where you make that argument you have to start scratching your head and saying is this really wide

we restrict marriage to one man and one on the idea that they would be an octogenarian spouse and we want to keep him inside the marriage. so both points are made by cott and one point is marriage it has not always been focused solely on -- and second ball even if you focus on procreation a lot of gay couples can procreate is just that they need assistance in order to procreate and a lot of heterosexual couples either by choice or through fertility don't procreate so it seems like a really strange place to draw the line. >> host: it sure does seem like a strange place to draw the line because as you say there are married couples to adopt children. sometimes they are opposite sex couples and sometimes they are same-sex couples. i thought one of the things if you go back and look at the polls and i have not done this, i would think one of the most

important things that should change the public's view on the gay marriage question is if you went back in 20 years and asked people about marriage they would talk about love commitment and raising children. a stable household and now they're something like a quarter million children in this country being raised by same-sex couples so i thought that's one of the really tough arguments that they had to deal with. here's a couple that is raising children. why should they not have the benefit of marriage? it would be good for them and it would be good for the children. why exclude them? how do they deal with that question? >> guest: i'm so glad you raised that because you are exact we write on that. what freedom to marry did some polling and they asked individuals why do straight people get married, they asked gay people what you as a straight person get married in

the straight individuals would say loving commitment. they wouldn't even bring up children in the first instance and then when asked why do you think gay people get married and this is in the early days they would answer we have no idea or maybe it's for material benefits or health care or something like that. they wouldn't see that gay people were capable of the same loving commitment and similarly we had analogous to evolution with regard to children. one of the things that gay historian after nancy cott any kind of connection between gay people and children were seen to be really toxic and if you go back to the anita bryant campaign in the 1970s the slogan was save our children and their the rhetoric is really inflammatory. it was a if you allow gay people

have equal rights and this was a simple nondiscrimination statute in florida she said if you give them a core rights they will just be emboldened to further recruit and molest their children so they are seen as predators and they are seen as potential recruiters of youngsters into the so-called homosexual lifestyle and when prop 8 pasty heard kind word -- kinder gentler protect their children meaning it was repeated over and over again. it was one of the slogans that accompanied the prop 8 campaign and protect their children sounds nicer than save our children and the rhetoric that was accompanying was much less inflammatory. it was unclear what protect their children really meant but at a minimum it was protect our children from being taught about homosexuality unless they grow up to be gay individuals.

there was still a dog whistle to individuals that believe that connecting or take their children with the older more inflammatory rhetoric. but notice what happens in the wake of this trial and the years after the trial soap course it's not just the trial but does it at but the movement around it and the messaging as well but what you see and what yell law professor to protect her children notion moving from one side of the ideological spectrum to the others other so protect their children becomes an argument from the right against same-sex marriage to become a progressive argument for same-sex marriage in a short period of time. i notice when president obama came out and they for same-sex marriage while the litigation was proceeding he said i have now evolved into now for same-sex marriage but if you read the interview with robert and robert he repeatedly alludes

to his colleagues who are gay raising kids and he said they are raising those kids with such love and such care and i wonder if people on the other side of this issue understand that these parents are just as responsible as heterosexual parents and in some cases more so. by the time you get to the hollingsworth argument in 2013 in the united states supreme court justice kennedy points out this idea so he picks up the ball and runs with it by saying there are 40,000 children or he says tens of thousands tens of thousands of children in california alone who are being raised by same-sex couples and that you think the voice of those children deserve to be heard? how are those children helped when their parents are not permitted to marry so you asked how did cooper respond to that

and cooper gave a think the best anomic response that he had which was to say that is a really serious concern but it's a concern that should be heard through the legislative process which to me means he doesn't think it's about argument. he doesn't have a counter argument. he just thinks that the court is the wrong place for these arguments to be vetted and if the argument is persuasive than it will persuade in the legislative process. >> host: you said early on to the legal context that when there's a claim of discrimination or whatever the state has to release a we have some rational basis for this law. we draw a distinction between some of our citizens and some others. you at least have to have a rational basis which i think judges and courts has to have some legitimate reason and when i read your book on the trial and i think i have seen it again in the supreme court chuck cooper side has really struggled to say okay what is the reason

for excluding these gay couples from marriage? and they have come up with a number. i want to run a couple by it because they don't seem all that convincing could buy the argument is that is going to harm marriage and hurt the marriages of straight couples so how did that fair? >> guest: not well. i think it really got eviscerated that trial and that is one of the things i think that the trial did so beautifully. going back to the contrast between having these debates in the media and having them in a courtroom in the years running up to the trial there are various individuals including people with doctorates in anthropology. i'm thinking of individuals that stanley kerns road in venues on the national review on line in

venues saying in scandinavia we have party scene gay marriage, the introduction of gay married his being institutionalized heterosexual homosexual -- the idea is that gay berridge will hurt straight marriage and first i want to say this is counterintuitive. this again came up during trial because bob and ted down the street are getting married a man is not going to turn to his wife and say we have had a really good ride for 20 years but we will have to throw in the towel now and that gay couple got married. there's a lot counterintuitive about that comment so they push back to this empirical claim in countries where same-sex marriage has been legalized you

have seen marriage rates for heterosexual couples go down because they feel like marriage is somehow less valuable or it's been tarnished by the addition of homosexual couples. during the trial would happen with both sides zoomed in on the net on such a cooper said he would make a presentation on the netherlands during his opening statements and so he made that promise to the court that he brought in a bunch of data about the netherlands and the only demographer who testified was on the plaintiff side so individuals who have been very vocal in the media were nowhere to be seen when they were called to testify on the side of the proponent said the proponents bench only had to witness a ultimately and certainly no one who testified on the deinstitutionalization point. an amherst economist was testifying about the notion of

deinstitutionalization and chuck cooper flashed out this part. he said a the picture's worth a thousand words. a chart that has a line at 2001 when same-sex marriage is legalized and he shows the way a marriage has declined in a uniform way and eight years prior to and eight years after 2001. what lee badgett says in response is to say what's really important is not opposite sex marriage rates have declined but rather the introduction of same-sex marriage has contributed to that. so there may be many other factors leading to this decline in same-sex marriage the helping rather than hurting and amelia rating it rather than not and she said if you took that red line in 2001 out and you show that graph to the courtroom no

one in the courtroom would be able to tell you when same-sex couples got the right to marry in the netherlands. through a series of exchanges like that, that wasn't the only one. this one on for hours but during a series of exchanges like that which included massachusetts in this country and spain which is another jurisdiction that has allowed same-sex marriage at that time the same point was made over and over again which is to say you might be able to show a steady decline which we are seeing in marriage rates across-the-board and in many of these countries but you can't make any kind of causal claim between the introduction of same-sex marriage and that decline. in fact in some jurisdictions after same-sex marriages introduced but the voice rate goes down in the divorce rate goes up so it's very hard to sustain that claim. i really feel like she has cleaned out the gutters on this issue and that all of these claims and counterclaims and

various case studies that were alluded to were finally put to the test in the trial and the other side didn't bring their own expert and were unable to destroy badgett's testimony on the stand. i think the institutionalization argument ultimately was made in highly conceptual terms which is to say ultimately what cooper was left to say is if you change the definition of the thing it's hard to believe that it's not going to have a negative effect on the thing itself. so it's a very phonetic and conjectural argument so it turned lesson to an empirical argument than a we will never know, let's wait-and-see kind of argument. that kind of we have to wait and see as an argument that the court court has never accepted because the court says we don't think when the cases come before us we have to give an up or down on the constitutionality. you can't say we prefer to wait 10 years and considerate.

that is not an option available to them. >> host: most americans come you don't need the netherlands example to say that if you look at divorce rates are rates of children being born in single-parent homes or whatever they have gone way up in the united states from the 1970s on and of course it had nothing to do with same-sex marriage. this predated that trend by a decades-old lot of people considered not a problem with marriage united states but it's hard to say the introduction of same-sex marriage had to do -- anything to do with it because it seems like that came very late. >> guest: sorry david i just wanted to add fuel to the fire when the proponents witnesses made that point. daven blankenhorn when he took the stance that it's heterosexuals have done most of the deinstitutionalization of marriage that's been the

introduction of no-fault divorce or other developments that the heterosexual world predated the introduction of same-sex marriage or the idea of marriage equality in this country that have led to the steady decline. one of the things that badgett said ` cooper was when you say the rate of marriage has declined your just talking about percentage rates the percentage of people who get married has declined but what we are really interested in is the rate of change whether or not the rate of change has accelerated because of the introduction of same-sex marriage. they always say that lawyers can't do math and when i was reading the transcript was having negative flashbacks of calculus class. to say just because there's a decline doesn't mean gay people are causing that decline so you have to look at whether that acceleration in the decline were when same-sex couples were permitted to get married. >> host: apec professor friends of mine at the argument

sometimes joking and something serious is that the image of so many same-sex couples fighting so hard to want to be married and take him all the commitment and responsibility of marriage is a wonderful thing for marriage. making people think again of why marriage is so important. they had gone through period on the 60s and 70s were so many young people said we don't need to get married as it is unimportant and it seems to be if anything gay couples have made marriage seem much more appealing institution than it had then. it is the case chuck cooper is you said says wait and see wait and see but i think you are right so far it's not apparent there's any evidence that same-sex marriages somehow hurt or changed the institution of marriage. another part of the trial that's very interesting is the question of how should the law a few gays

and lesbian and what lawyers are calling immutability. is someone born gay or so the phrase that used to be used this as a lifestyle choice? if you are born a certain way just like with race or gender is hard for them to argue that the government should discriminate against you for that reason. wasn't there interesting testimony about how to view lesbians and gays. >> guest: this is part of the most moving points in the trial. if i could back up one of the things that particular trial did extraordinarily well was to give a human face and voice to many of these questions. this is the brainchild as far as i can tell of his terry stewart who was an attorney for the city of san francisco assisting us in

intervener on the plaintiff's side page she said i worry that this trial is going to be too dry and once the plaintiffs who are always the human face of any litigation testify in the first day. the human dimension is going to drop out and it's going to be expert testimony which is incredibly rigorous as i said an incredibly boring for the same reason but sometimes you have to be tedious in order to be rigorous. what you said was i'm going to interweave what she calls her what is called lay witnesses alongside the expert witnesses. the lay witnesses were there in order to testify in a more individual human way. they didn't purport to be experts. what they purported to be worth people that had lived experience with this so going out to the immutability question there's a one-two punch because ryan kendall this young man who described himself as a glorified secretary to the colorado police

department testified that when he was rolling up in a conservative evangelical household of his mother told him that she would rather have had an abortion than it had a gay child. this was after they read his journal and discovered that he was gay. so they sent him into conversion therapy in order to have them converted to heterosexuality and the way in which she described it was that this was not something that he was capable of altering about himself but the idea that he had to extinguish it meant that just logically if you are supposed to extinguish your homosexuality the only way to get rid of it is to get rid of yourself so he became suicidal and emancipated himself from his parents and that he could avoid going to conversion therapy and then became homeless homeless, use drugs was in a terrible place and then true

grit clawed his way back up to this position with the police department. he testified about this in the trial and according to reports because it was not the trial itself there wasn't a dry eye in the house because his testimony was so harrowing and it showed how intractable sexual orientation is and how much harm akin to when we say to an individual particularly a young individual this is something you have to change about yourself even if it's impossible to change, you have to try. what's fascinating to david is i think most of us assimilate information through stories that most of us also have that nagging voice in the back of her head that says how representative is that story because of the supreme court

level we are making policy for the entire nation when may make a decision. we have to be really careful about making sure no matter how moving or because it's so moving that this story doesn't take us off course and we understand the truly better story is truly represented. a couple days after ryan kendall testified an expert witness testified, ph.d. fully tenured professor who was coming in with this charge in his graphs and data to show that 92% of individuals in various studies that he conducted said that they were unable to change their sexual orientation. what was so amazing about the way in which immutability was argued there was that ryan kendall's testimony capped expert testimony from seeming too dry but brian kendall's

testimony from seeing seemingly video credit. statistical compassion is the compassion elicited by stories and narrative compassion is compassion a story elicited by data. so reporting and not endorsing she said president ronald reagan had a huge amount of compassionless statistical compassion to be much less likely to respond to somebody when they were telling him somebody's telling them a story about becoming homeless. he would tear up and have a general emotional response but someone showed him statistics about homelessness he was less apt to see the suffering of -- what this trial bid was to offer

that for almost every major evidentiary point. it was not only an expert topic but there was an individual witness who was testifying in the most root sense of the word to that evidentiary point in a way that made it come to life in a narrative way within the confines of the courtroom and later the transcript. >> host: we have just a couple minutes left. i'm interested in you summing up what you think i take it out like the scopes monkey trial comparison but what would you say we are left with what the trial? what was his contribution and how to change your thinking about the gay marriage issue? >> guest: to be clear i don't like the scopes trial only because they think that they questions that were said were ridiculous question so that was a show trial so far as the questions that the two sides were asking each other particularly clarence darrow

asking william jennings bryan having to do with what happened to the earth than when the sun stood still or things in the bible that seem to contradict evolution and science. so i think that was much more showboating than actual legal questions that have to be answered to get to a particular conclusion. what this trial resembled more was another case decided in 2000 20005 whether intelligent design was any different from creationism and there was a lot of scientific testimony about how there really was the no difference between the two. but to get to your question if i were to just put it in a nutshell what the trial did for us was that it pushed this debate to the ultimate level of clarity for several reasons. first of all because of cross-examination which the

evidence john henry whitmore said was the greatest legal engine ever devised for the discovery of truth it was rigorous and it was comprehensive and vetted all of the issues and that it was civil and by civil i mean in civil in the sense of being polite in the sense that there wasn't name-calling. there wasn't an opportunity to hurl epitaphs and there was an opportunity to grandstand. then finally it was a deeply human event. that really goes to the narrative statistical compassion divide that i was trying to bring to the forward just that these are not just abstract arguments but they are arguments being made about human beings, living breathing people who when bodied arguments that were being made. i think it's no accident that this trial has broadened that only my book as well as a

documentary because if you decide something on summary judgment which is just papers being passed back and forth between attorneys there's a reason why there are no great works of literature based on summary judgment. it's not a human event in the way at trial was so ultimately it was the trial's capacity to bring all of those very different things together rigor rigor, conference of this civility and humanity that made it different from any conversation that we have had in the history of this nation. i think of us conversation we will ever have and i think that's a huge leg up for any country globally international and the 200 nations that don't have marriage equality to read the trial transcript or to read my book in order to get a sense of how thin the arguments have been on the other side really were so they don't have to reinvent the wheel.

they have far to have the event that have the conference of this and the humanity in a prop 8 trial. >> host: kenji yoshino thank you for a very fine book and a great conversation. >> guest: thank you so much david. it was a great pleasure to talk to you. ..

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