One of the most fascinating developments in American civil rights is how quickly the country turned from making gay marriage a wedge issue, to making it a matter of national importance that it come to pass. Meanwhile, in California, a supposed bastion of liberal and progressive idealism, passed a ballot measure banning gay marriage in November 2008, coincidentally at the same time the United States elected its first black president. The Case Against 8 chronicles how the legal community rallied quickly, sowed strange bedfellows, and came together in record time to dismantle Prop 8 at the same time that the entire case against gay marriage began to fall apart.
The documentary is fairly straightforward in that it follows the one singular case through its various court levels, from a lawsuit in California to the halls of the Supreme Court of the United States. For me, there’s always a fascination about how the law works, and The Case Against 8 gets right into the sausage-making of how you build a lawsuit, and it goes deeper than the lawyer standing up in front of the court and making the argument. The cameras of Ben Cotner and Ryan White follow no less than two dozen lawyers and investigators as they search for witnesses, organize precedent, arrange testimony, take deposition, and prepare arguments. It’s a beautiful legal machine that makes you appreciate just how much work goes into a case with the expectation of it landing on the doorstep of the country’s most powerful judges.
Another interesting aspect to this particular case is that it was run for the plaintiffs, those looking to overturn Proposition 8, by a pair of experienced lawyers named Ted Olsen and David Boies. If those names aren’t familiar, then you need to think back 14 years to Bush V Gore, the SCOTUS case that stopped the recount in Florida and made George W. Bush the 43rd President of the United States. Olsen won that fight, but there’s a real camaraderie between him and Boies, I suppose owing to their mutual place in history and being part of a small club of lawyers who’ve argued in front of the Supreme Court.
But the film isn’t all about the lawyers. The four plaintiffs bringing the suit are a pair of couples: Paul Katani and Jeff Zarillo, and Kris Perry and Sandy Stier. Interestingly, they didn’t bring the case to the lawyers, but they were chosen by the legal team to represent all LGBT couples wanting a marriage certificate in the State of California. Paul and Jeff are just a couple of good looking guys who want the right to celebrate their love in a way that’s traditional, while Kris and Sandy have four sons between them, and are looking for practical legal protections for their family. Naturally, they’re built to be appealing, and seeing inside their lives of course re-enforces the belief that they deserve the rights they’re fighting for. The film also briefly addresses the fact that they became targets for hate-mongers, and I think the film wisely leaves that bigotry as a fleeting mention rather than giving it air.
Because of that, the people against Proposition 8 come across as cartoonishly bigoted, especially Bill Tam, who is the chief witness for the defense and says the gay marriage sanctioned by the state is tantamount to “legalizing evil.” Or David Blankenhorn, who was a fervent anti-gay marriage advocate before changing his mind. I know they’re on the wrong side of history, and not the focus of the documentary, but it would have been interesting to get more from the point of view of the Proposition 8 supporters, if only to understand why the marriage of two people of the same sex is such an affront to them.
For some reason, The Cast Against 8 makes it look as if the anti-gay marriage side folded like cheap lawn furniture and didn’t put up much of a fight, and that’s not exactly true. The movie is so wound up by its righteousness that the assumption is that the Prop 8 supporters are going down for the count, but they couldn’t possibly know that while making the film. It would have been nice, if for no other reason than to add dramatic punch, to have couched the plot with the legal hurdles the plaintiffs had to clear, or put the Prop 8 victory in a greater historical context of the struggle for gay rights.
When we get to the Supreme Court phase, it’s pretty much conclusive that the Prop 8 supporters are going to lose. Still, when the decision comes down, the movie uses dramatic music and erratic editing as if a) we didn’t already know what the result was, and b) as if the movie had created any actual dramatic tension before hand. Of course, the movie’s been building up to this moment, but the moment feels kind of rushed and truncated, skipping right over the actual arguments in court as if to say that this was a forgone conclusion in the first place, and what was said and discussed inside the Supreme Court doesn’t matter. It’s kind of like a James Bond movie skipping over the climactic action scene and cutting to Bond enjoying a martini and the company of a romantic interest.
The dissenting opinion about The Case Against 8 is that it’s a fairly straightforward, one-sided documentary about a complex legal struggle that goes back decades. No one’s going to argue, at least in front of a camera crew, that LGBT couples don’t deserve the right to the legal and societal privileges of marriage. In its favor though, the film is well made and well thought out as, at the very least, an epic time capsule of the tide turning in an important legal and social issue of our times. No matter any other consideration of the film’s style, I’m glad someone was there with a video camera.
The Case Against 8 makes great history, but as a documentary it doesn't really break any new ground.