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Film Review: 'The Case Against 8'



“This may be the most important case I’ve ever handled,” states Ted Olson, one of the two attorneys fighting Prop 8 in Ryan White and Ben Cotner’s intimate documentary, The Case Against 8. And after watching the film, you will feel as though you have won right alongside him.

As we know by now, the initial case against Prop 8, Perry v. Schwarzenegger, eventually wound its way to the United States Supreme Court. We also know that the outcome was favorable, and same-sex couples in California could marry once more. Still, White and Cotner’s documentary effectively builds suspense by successfully balancing its emotional and legal content, taking us beyond primetime news coverage for an in-depth and ultimately cathartic journey.

8AttorneysThe film takes a relatively direct approach. Though we start in March 2013, with a prologue involving the lead-up to the Supreme Court case, the film immediately flashes back to November 2008 where we are faced with an interesting coincidence: the election of President Obama--a harbinger of hope--and the ominous passage of Proposition 8 in California. What follows is an Avengers-style character introduction, as each new member of the legal super-team is picked up, unaware of the harrowing adventures they will take on together. 

The movie was screened at Film Society of Lincoln Center and included a talkback with our super-team, the directors (who won the documentary directing prize at this year’s Sundance Film Festival), the plaintiffs, and Chad Griffin, director of the American Foundation for Equal Rights. At the talkback, Ryan White admitted that he and Cotner initially intended to focus the film on the odd couple pairing of Ted Olson and David Boies (above right), memorable rivals in the Bush v. Gore case who, in this battle, proved that marriage equality is not an issue of liberals versus conservatives (check out Towleroad's 2010 interview with the attorneys here). The filmmakers adjusted their initial intention, however. Plaintiffs Jeffrey Zarrillo and Paul Katami (below left), and Kristin Perry and Sandra Stier (below right), take center stage, serving as the narrative’s emotional core. The couples are remarkably well-spoken individuals in their own right, and as much a part of the legal proceedings as the lawyers representing them.  

8JeffPaulWhere the film really stands apart is in its intimate, almost claustrophobic, prioritizing of jargon-heavy pre-trial vignettes in which a team of attorneys vet the plaintiffs and gather information in their San Francisco law office. The audience comes to understand the intricacies of the case and, more importantly, the personal investment that each of the people involved has in taking down Prop 8. Getting to know each individual helps forge a deeper stake in the case’s outcome, and makes the threat of failure in this battle far scarier.


Emotions run understandably high. The law firm’s offices are a revolving door of teary testimony and raucous laughter. White and Cotner pair scenes of Perry’s raw speech on the aggression she faces each day (and why she is stronger for it) with a drawn-out, serious cross examination of Stier that ends with a solemn-faced-turned-hilarious recitation of her inconsequential “About Me” section on Facebook (as though it should mean something when she takes the stand). In each instance, the plaintiffs are met with warm support from their attorneys; Olson in particular seems to love long hugs. Lawyers and the profession they practice so often seem cold, but Cotner and White are invested in seeking out the tenderness behind this case.

8KrisSandyThe depictions of the trials themselves vary based on whether cameras were allowed into the courtroom. The first trial, to which the film devotes the most time, consists of the plaintiffs and attorneys reading transcripts from that day, a narrative device which quite evocatively showcases their eloquence in the face of oppression. The directors had footage from the appeals trial with which to work, and audio of the Supreme Court justices from the final trial; still, they consistently refer back to the plaintiffs and attorneys directly, utilizing the tension that those involved felt in order to build the audience’s anticipation.

That anticipation leads to the sweetest moments, of course: the victories. One after the other, Boies, Olson, and the plaintiffs win the trials, fueling scenes of cathartic release. No moment reveals the happy break from tension so much as the the plaintiffs’ dual marriages. One panelist at the talkback described how the film’s “story is told by the expressions on people’s faces.” One look at Zarrillo and Katami’s tear-stricken cheeks says more about the fear and pain of a long-fought battle, finally released in a moment of pure joy, than words could describe. 

8LawOfficeThe Case Against 8 is not a perfect film. There are a few too many comic bits involving Boies and Olson, and we do not spend enough time at the Supreme Court. And though the filmmakers do an excellent job at crafting dramatic tension from a subject whose ending is a foregone conclusion, one cannot help but feel that the tone, so insistently hopeful about (and focused only on) marriage equality as “the gay issue,” is slightly passe. The film’s Prop 8 focus is momentous but cannot match the exhilarating speed with which states are deciding on gay marriage bans, or the importance of ENDA, LGBT homelessness, and health-based issues (often ignored in mainstream gay media). It makes it all the more clear that White and Cotner’s filmmaking, like the legal process, was constantly shifting, moving toward an unknowable outcome glimmering in the future. 

This uncertainty, while difficult, also makes for that ultimately cathartic ending, and what Ryan White described as a “bittersweet” postscript, in which the number of states still seeking marriage equality is revealed. This statement, like the outcome of The Case Against 8, does not shock or add to on-going discussions surrounding the gay rights movement. The film surrounding it, however, proves to be an undeniably worthwhile and intriguing look inside the case that revved that movement up. 

The Case Against 8 will premiere on HBO on June 23rd.

For now, check out the trailer and the film's website to find screenings near you.

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  1. The film is a sham. HBO's documentary unit should be ashamed its "The Case Against Prop 8," which is one long commercial for how Chad Griffin--first at AFER and now at HRC--freed the gays through the Olson-Boies suit that did restore marriage rights in CA, but that the US Supreme Court punted on rather than making the desired 50-state ruling for same-sex marriage. Griffin and his colleagues trash the rest of the gay movement for resisting his (failed) strategy and the film gives absolutely no voice to those critics at all. The historic Windsor case that Roberta Kaplan and the ACLU won is barely mentioned and there is not one picture or interview with Edie Windsor, Kaplan or James Esseks of the ACLU. At the end of this film, the AFER crowd takes credit for all the subsequent judicial marriage wins when in fact they are grounded in Windsor. The film does go behind the scenes in the Perry case and focuses a lot on the plaintiffs which has its interest, but there were already 18,000 legally married same-sex couples in CA so they were hardly the first, just the first after Prop 8 was struck down. In the crowd scenes at the Supreme Court the day of the decisions, the camera lingers over HRC banners--from Griffin's new group.

    Griffin's work is not based in activism and coaliiton building, but on PR (his background in Hollywood) and credit-grabbing. It is quite frankly disgusting. And HRC is now selling the community down the river with ENDA, an anemic bill that does NOT provide equal protection, but only covers some kinds of employment and throws those who work for religiously affiliated institutions such as hospitals and schools right under the bus. Ted Olson's involvement in this case certainly did attract attention to the cause and open up some minds on the "conservative issue" (his words) of letting gay people marry, but the film never asks why Olson actively supported Mitt Romney who favored a US constitutional amendment against same-sex marriage and why Olson doesn't seem to have re-thought ANY of his other reactionary positions in the wake of his experiences fighting for same-sex marriage. The film opens on June 6 in theatres and bows on HBO June 23. Skip it and do something useful for LGBT rights and other social justice causes.

    Posted by: TWINS | Jun 3, 2014 10:22:18 AM

  2. Twins comment above is nonsense. Despite the public relations element of self-promotion, in fact AFER was absolutely rooted in grassroots activism. Griffin, the Reiners, Cleve Jones, Dustin Lance Black, etc. were absolutely in tune with the grassroots who were disgusted with the HRC (as it was then) and the Democratic Party and the Obama Administration (which in its first two years used the Justice Department to fight against gay rights rather than to futher them). There is an irony that the handful of millionaires who funded AFER were actually far more sensitive to the rage and despair felt by grassroots activists at the passage of Prop 8 than the established gay organizations were. Thank God AFER did what the established organizations told them not to do. AFER, because of their public relations savvy, not only fought an epic legal battle, they also helped changed the minds of Americans about gay marriage through their educational mission.

    Posted by: Jay | Jun 3, 2014 10:45:44 AM

  3. Just another "informercial" posing as a documentary...Shame on them...

    Posted by: styler | Jun 3, 2014 10:49:04 AM

  4. Thanks TWINS. I won't be watching this garbage.

    Posted by: THE QUEEN | Jun 3, 2014 10:52:33 AM

  5. This is an interesting story. It's not claiming to be the WHOLE story, whatever that ultimately turns out to be, but that it doesn't necessarily include all of the pieces you feel are relevant (despite this being marketed as "The Case Against Prop 8") doesn't negate its value, whatever that might be. I will wait until I see it before I write some holier-than-thou comment about a documentary I've yet to see. I find it depressing reading some of these comment boards because of the all-or-nothing approach that some of the commenters take in casting aspersions and the black-or-white views they seem to be stuck with in viewing life.

    Posted by: Bill Lundy | Jun 3, 2014 11:41:49 AM

  6. @Twins: Perhaps you missed the TITLE of the movie -- it is called "The Case Against 8." It does not seek to be a documentary on the gay rights movement. It's a documentary focused on Perry v Schwarzenegger. Nothing more. Please save your outrage for things that deserve it and pay attention.

    Posted by: PolarBeast | Jun 3, 2014 12:24:38 PM

  7. Perhaps TWINS is just not from California. We have a different take on it here. I have yet to see the documentary, but I assume it does not make the same tragic mistake as the book on the same subject with the same access, and claim the Prop 8 case is the beginning, end, and be-all of gay rights history.

    Nope, it's the story of Prop 8 - an important chapter in gay rights history. Maybe the intent of the lawyers was to get a 50-State Solution with that case, but that wasn't the hope we Californians had riding on it. Our equal rights were stripped away, and we wanted them back. We want those rights for all our fellow Americans, but the Prop 8 issue was about California. We're so happy and moved that the passage of Prop 8 was an affront to people around the country and around the world. But ultimately it was about restoring our rights in the Golden State.

    The Windsor case turns out the be the one that will likely bring equal marriage rights to the entire nation - but it's meaningful on a sweet level that the Windsor and Prop 8 cases were entwined at the Supreme Court. And there could be no more just outcome for the Prop 8 case than to find that mere state ballot proponents have no standing to defend a matter of no harm to them in federal court. That's entirely as it should be.

    I'm looking forward to seeing the documentary. It's actually screening at a theater here in the L.A. area a couple of weeks before it airs on HBO, and the Katami/Zarillo plaintiffs will be there for a Q&A. I'm not sure if I'll go the lazy route or not, but there's no way I'll be missing the film. Prop 8 was a Very Big Deal to me.

    Posted by: Zlick | Jun 3, 2014 2:17:59 PM

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