Ted Olson Hub




INTERVIEW: Directors Ben Cotner and Ryan White on Capturing the Human Heart of 'The Case Against 8'

Thecaseagainst804

BY JACOB COMBS

“The Case Against 8,” the new HBO documentary about the legal challenge to California’s marriage equality ban, buzzes with the kind of dramatic tension a seasoned screenwriter might employ.  But Ben Cotner and Ryan White’s remarkable film has something no Hollywood film on Proposition 8 could ever hope for: the verisimilitude of reality. 

Thecaseagainst805The lawsuit against Proposition 8 was filed in May 2009; the case’s final resolution came on June 28, 2013.  During the four years that the case tangled and twisted its way from a San Francisco courtroom to the U.S. Supreme Court—and during the intervening year until the film’s theatrical release on June 6 and its streaming release on HBO this coming Monday—White and Cotner made a film that reminds us just how important the Prop 8 case and its accompanying trial were to advancing the conversation about marriage equality to where it is now.

During my interview with Cotner and White earlier this week in New York, one day before they jetted off to San Francisco, where their film opens the Frameline Film Festival tonight, one thing became abundantly clear to me: this is the kind of story that a documentary filmmaker dreams about telling.  And just as importantly, the two directors’ five-year journey demonstrates that one of the most significant aspects of the Prop 8 case—one which it is almost difficult to recall now, after so many remarkable LGBT rights victories—was that absolutely nobody had a clue how the case would turn out. 

Thecaseagainst802Yes, the challenge was intricately planned by the unexpected legal dream-team of Ted Olson and David Boies.  But when White and Cotner began filming, there was no telling how the case would resolve, or the several unexpected detours it would take from district court to the Supreme Court.  At first, Cotner recalls, he and White were amazed that AFER had even agreed to their request to film the case’s early development.  “Every day,” he told me, “we would show up and expect to get kicked out.”

They weren’t kicked out, but they weren’t sure they would end up at the end of the project with a film.  “It was really several years of us being completely nauseated by the idea that we’d put all this work into it without really knowing whether it would have an ending,” Cotner told me.  Because of that, the two filmmakers—both gay Californians themselves—documented every meeting they could, no matter how seemingly insignificant, for a total of some 6,000 hours of footage.  

But once Judge Vaughn Walker chose to hold a trial, the filmmakers’ entire calculus changed.  “The trial,” Cotner told me, “was what was historic about this case.  Growing up in Indiana, I never imagined I would be in a federal court where people were talking this rationally and articulately about these issues and examining the science behind it.”  Or, as White put it simply, “Trials are cinematic.  It made our film cinematic.” 

Thecaseagainst801

After some legal wrangling, it was determined by the U.S. Supreme Court that cameras would not be allowed to record the Prop 8 trial in district court, meaning Cotner and White would have no footage from this most human part of the case to include in their documentary.  So they did something risky—“our Hail Mary,” White called it: they had the plaintiffs—Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo—each re-enact the testimony that they gave in the courtroom in January of 2010, reading directly from the transcripts of their own words.  “We both thought it was going to be a bad idea,” White told me.  “And they were all amazing.  Listening to each of them reread—everyone was just sort of captivated by them.”  Those in-studio reenactments form the heart of “The Case Against 8,” both figuratively and literally, coming as they do at the exact middle of the film.

Thecaseagainst802Of course, when the plaintiffs first spoke those words in San Francisco, nobody knew they would succeed before the Supreme Court—or even if the case would make it that far.  “It really wasn't until the Supreme Court granted cert,” Cotner said, “that we could say, OK, we know this is a 3-act film and it has an ending.  Whether it's a good ending or a bad ending, we know we have a film." 

But what ending would it have?  There were three possibilities: a nationwide pro-equality ruling (the big win), a decision on standing that would lead to the return of marriage equality to California but nowhere else, and a devastating anti-equality ruling that would grieve LGBT hearts from coast to coast.  “Any of those three outcomes were OK to us as storytellers,” White told me, “because they’re all a good ending”—from a filmmaking perspective, at least.

Luckily for the plaintiffs—and all LGBT Californians—the high court’s decision did bring marriage equality back to the Golden State.  And with the help of the Ninth Circuit, marriage returned in a most unexpected way: just two days after the Supreme Court’s ruling, more than 20 days before anybody thought it would.

Thecaseagainst807“I was in my car,” White told me, recalling the day.  “I got a text from someone at AFER saying, don’t ask any questions, just drive to the airport right now and go to San Francisco.”  And so he did, slightly miffed, because he and Cotner had received similar missives and dropped everything only to have nothing happen.  “It’s not going to happen today,” White remembers thinking, but then came the call that the court’s stay had been lifted.  “It was like an action film,” White said—their driver flew through the city, hopping curves and racing for City Hall, where White’s camera equipment set off every alarm in the security line and a sharp-eyed guard, recognizing the history of the moment, pulled White aside and said, just go.

Meanwhile, Cotner was in Los Angeles with two of the plaintiffs, Paul Katami and Jeff Zarrillo, fighting their way through traffic to a county clerk’s office in Norwalk.  When they arrived, confusion reigned in the office, and they were asked to step aside and wait, since the office had not yet received notice of the court’s lifting of the stay.  “That, after four years and all of the work that Paul and Jeff had put into this, was such a sucker punch.”  Incredibly, California Attorney General Kamala Harris was reached on the phone and personally instructed the Norwalk office to issue the marriage license—a phone call that Cotner and White were lucky enough to film from both sides, and one that shines in their documentary. 

Thecaseagainst806And then it was time for the weddings.  “It was one of those moments,” Cotner says, “where as filmmakers it’s just so hard to hold the camera.  Because you’ve grown to love these people and you’ve got to film this.  This is the only moment that you really have to catch, but it’s the one time you want to put the camera down and really just be there and be a part of it.”

“It was one of the best days of our lives,” White told me.  He and Cotner had expected they would have a full 25 days before the stay was lifted to plan for the couples’ weddings—and the logistics of shooting them.  In the end, though, he says it was a blessing that things happened the way they did: “I don’t think it would be as amazing of an ending if it wasn’t so rushed and frantic and confusing and then celebratory." 

In a way, “The Case Against 8” is just like, well, the actual case against 8: a high-stakes, multi-year project with no guarantee of success at the outset.  But even knowing the eventual outcome of the legal challenge, it’s impossible not to be moved by the way Cotner and White’s film shows us the abounding humanity of the case’s plaintiffs and of the lawyers who told their story.

As our interview came to a close, White shared an anecdote from the film’s Tuesday premiere in Atlanta, where he’s from.  At the after party, White’s best friend, who had brought his very conservative mother to see the film, came up to the director and burst into tears.  “My mom grabbed my hand from the very first frame of your film,” he told White, “and never let go.  And right when the credits started rolling, she turned to me and said, ‘I’ve been wrong about this.’”  White was gracious and humble when we spoke: “That’s not me or Ben,” he said.  “That’s Kris and Sandy and Paul and Jeff.”

Actually, it’s all of them.  The human story was always the secret weapon of the legal challenge to Proposition 8, and it’s the secret weapon of “The Case Against 8” as well.

The HBO documentary “The Case Against 8” will debut this Monday, June 23rd.

Check out the trailer, below:


Ted Olson and David Boies Argue Marriage Equality Before Stephen Colbert: VIDEO

Boiesolson_colbert

Stephen Colbert put the focus on gay marriage last night, warning that gay people are winning the war for equality as more and more states run their same-sex bans through the 'Grindr'.

Marry_colbertHe notes that Wisconsin conservatives are fighting back against the recent ruling there, though Governor Scott Walker is reconsidering his position.

"Tonight in solidarity with Scott Walker, I, Stephen Colbert am officially taking NO STAND on gay marriage...It may or may not matter to me. The point is I am passionate about my unwillingness to express or even say the words. The point is, I'm here, they're queer. Let's talk about something else."

Colbert also invited Ted Olson and David Boies on the show to ask them how a conservative and a liberal can possibly be friends, what is so compelling about their argument for marriage equality that would bring two enemies together, and tell them the danger he is in because of the encroachment of gay marriage.

Check it out, AFTER THE JUMP...

Continue reading "Ted Olson and David Boies Argue Marriage Equality Before Stephen Colbert: VIDEO" »


Film Review: 'The Case Against 8'

8Court

BY JOSEPH EHRMAN-DUPRE

“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.

CONTINUED, AFTER THE JUMP...

Continue reading "Film Review: 'The Case Against 8'" »


4th Circuit Court of Appeals to Hear Challenge to Virginia’s Ban on Same-Sex Marriage this Tuesday

Bostic_london

Bostic v. Rainey – the Ted Olson and David Boies-backed challenge to Virginia’s ban on same-sex marriage is set to be heard before a three-judge panel of the 4th U.S. Circuit Court of Appeals this Tuesday.  

The AP looks at what might happen in the case before the court:

HerringA three-judge panel randomly selected from the 16-member appeals court will hear arguments from lawyers for both sides. The Richmond-based 4th Circuit, once widely considered the most conservative appeals court in the country, has become more moderate with the addition of five appointees by President Barack Obama. Lawyers typically face what they call a "hot bench," which means the judges ask a lot of questions. The court usually issues its rulings several weeks, or even months, after hearing arguments.

Last month, Virginia Attorney General Mark Herring [pictured right] filed a brief supporting the plaintiffs in the case, a move that has drawn criticism from conservatives in the state. The job of defending the law during verbal arguments is now with the legal team of Norfolk’s Circuit Court clerk George E. Schaefer III – the clerk who originally denied Timothy Bostic and Tony London their marriage license.  


Narrative in New Jo Becker Book on Fight for Marriage Equality Called 'Absurd', 'Distorted', 'Deceptive'

Fts_becker

BY LISA KEEN

To say there’s been a flurry of discussion around the release of a new book Tuesday on the legal case that challenged California’s Proposition 8 would be an understatement. The book, Forcing the Spring, by New York Times writer Jo Becker, has been thoroughly pilloried by many plugged-in LGBT activists and journalists this week, both publicly and privately.

Griffin_olsonWhile a few have attempted to cut Becker some slack for documenting some behind-the-scenes litigation and political strategies, most fault her for an approach that seems hell-bent on making Human Rights Campaign President Chad Griffin and conservative icon attorney Ted Olson into the white horse heroes of an upcoming Hollywood docu-drama about How the Marriage Equality Movement was Won.

Hollywood movies do have a tendency to skew the historical record for audiences that have not been paying attention to the real world events; and, if it does come to the silver screen, Forcing the Spring will carry an impressive credential --that it was based on a book by a “Pulitzer Prize-winning journalist” (even though she co-authored the entry that won).

The intense negative reaction from the LGBT community to Becker’s book indicates the prospect that the marriage equality movement’s real history will be lost is very troubling to many LGBT people who have watched and been part of that movement. It did not begin with the Griffin-Olson lawsuit in 2009, but with individual couples as early as the 1970s and with veteran civil rights legal activists beginning in Hawaii in the 1990s.

SullivanConservative gay commentator Andrew Sullivan led the assault on Becker’s book this week. In his April 16 blog entry for his The Dish, Sullivan berates Becker for suggesting Griffin is on par with legendary black civil rights activist Rosa Parks. He dismissed the book as riddled with “jaw-dropping distortion,” such as Becker ‘s claim that the marriage equality movement “for years had largely languished in obscurity.”

Sullivan’s assault was joined quickly by an impressive string of critiques: writer-activist Dan Savage (“a bulls--t ‘history’ of the movement for marriage equality”), former New York Times columnist Frank Rich (“For a journalist to claim that marriage equality revolution began in 2008 is as absurd as saying civil rights struggle began with Obama.”), and White House strategist Jim Messina.

Becker offered a defense against the criticism, explaining to politico.com that she hadn’t tried to write a definitive history of the marriage equality movement or the “gay rights” movement.

“Many people have contributed to the success the movement has experienced. I have the [utmost] respect for all the people who contributed to that success,” wrote Becker. “My book was not meant to be a beginning-to-end-history of the movement. It’s about a particular group of people at an extraordinary moment in time, and I hope that people will be moved by their stories.”

Unfortunately, her intro to the book and the slick public relations material sent out to promote that book proclaim otherwise.

On page 1 of the book, she writes that the marriage equality “revolution... begins with a handsome, bespectacled thirty-five-year-old political consultant named Chad Griffin….” Her own summary of the book calls it is “the definitive account of the fight to win the rights of marriage and full citizenship for all….” And the Penguin Press release that accompanies review copies of the book calls it, “A deeply insightful and riveting account of a national civil rights struggle….” It quotes such celebrity legal commentators as Jeff Toobin as saying the book is “a superb, behind-the-scenes account of the legal battle to bring marriage equality to the nation.” The NAACP’s former president, Benjamin Todd Jealous, calls it “the definitive account of one of the great civil rights struggles of our times.”

This is the kind of hype that accompanies many books. It’s how publishers, in a very competitive environment, woo attention and favorable comments from reviewers, television talk shows, and other vehicles in a position to stoke book sales.

But critics of Forcing the Spring take issue with the book beyond the exaggeration of its marketing campaign.

D_blackForcing the Spring just doesn’t get it right,” writes BuzzFeed legal reporter Chris Geidner. He notes that Becker quotes Hollywood screenwriter Dustin Lance Black as being rebuffed by an audience of potential LGBT major donors to the litigation organized by Griffin’s American Foundation for Equal Rights. Becker also reports that the donor meeting’s organizer, Tim Gill, “denounced Black outright.” Geidner provides a link to a video of the closed-door meeting about which Becker was writing that shows Black’s speech was interrupted with applause five times, and won a standing ovation from at least a few in the audience. And Geidner says Gill’s alleged denouncement of Black was “more of a nuanced defense of ‘gradualism’” strategy for winning marriage equality.

Hollywood movies require conflict and struggle, and it may be that the book –whose inside cover touts it as a “gripping behind-the-scenes narrative with the lightning pace of the greatest legal thrillers”-- fell prey to the need to dramatize some hurdles for her heroes to overcome. A more journalistic approach might have conveyed the mixed reaction of Black’s audience and contrasted that with Black’s personal interpretation of how he was received.

It also would have been helpful for Becker to have talked in some depth with LGBT legal activists who have been working on the marriage equality movement for many years.

A number of LGBT legal activists have pointed out significant factual errors in Becker’s account as reported by the press thus far (none had received a copy of the book in advance) and expressed astonishment at her cavalier pronouncement that the marriage equality movement had been “languishing” in “obscurity” before Griffin and Olson came along.

Becker wrote that LGBT legal activists planned to win marriage equality in 30 states before filing a federal lawsuit.

“Lambda Legal did not have a strategy of getting to 30 states with marriage equality (or any particular number for that matter) before we would consider bringing a federal case,” said Lambda Legal’s Jon Davidson.    

KaplanBecker’s portrayal of Roberta Kaplan (right), attorney to Edith Windsor in the Supreme Court case that struck down the key provision of DOMA, as an “outsider” to the establishment legal activists was also widely disputed.

“Robbie was not an outsider,” said GLAD spokeswoman Carisa Cunningham. “She had worked for the ACLU for years, just as she did on Edie’s case. She also worked with Lambda on the New York marriage case, Hernandez.”

Becker was not hired by the movement to write its history. If she and her book promoters had just been a little more careful to pitch the book as a behind-the-scenes picture of the Proposition 8 litigation, the hue and cry might not be so harsh as it is.

The drama achieved by portraying the marriage equality movement pre-Griffin-Olson as “languishing” and “obscurity” extracts a price from Becker’s credentials. For LGBT people, the Baehr v. Miike trial in Honolulu and its subsequent legal victories --and even its political defeats, including passage by the U.S. Congress of the Defense of Marriage Act-- warrant neither of those dismissive assessments. There ensued an intense political war over marriage equality on state ballots around the country beginning in 1998, and, while supporters of same-sex marriage lost those battles, they came back with a steady, methodically planned and executed series of legal challenges that won civil unions in Vermont in the late 1990s and marriage equality in Massachusetts in 2003.

And just a month before Griffin and Olson first joined that battle with the filing of the Proposition 8 lawsuit, Lambda Legal won a unanimous victory in Iowa. The decades of cultural and legal combat opened up the country to a conversation that became both personal and national and moved public opinion. The Proposition 8 case was definitely part of that effort and, near the last paragraph of her book, Becker tempers her assessment of the Griffin-Olson effort as having brought the dream of equality “within reach.”

The Proposition 8 litigation enabled same-sex couples in California to be married, and other political activists and lawsuits have won marriage equality in more than a dozen other states. The legal team of Olson and David Boies is back at work with a case in the Fourth Circuit U.S. Court of Appeals, and other legal teams have similarly situated cases in other federal appeals courts. Each is hoping to win marriage equality for all states. Almost certainly, one of them will succeed. But the credit will belong to the many, not the few.

© copyright 2014 by Keen News Service. All rights reserved.


Virginia AG Mark Herring Joins Court Challenge to State’s Ban on Gay Marriage

Virginia Attorney General Mark Herring has filed a brief supporting Bostic v. Rainey – the Ted Olson and David Boies-backed challenge to the state’s ban on same-sex marriage that is currently awaiting further ruling in the Fourth Circuit Court of Appeals. 

The Virginian-Pilot reports:

Mark herringIn a 79-page brief filed Friday, Herring argued that the Supreme Court has consistently found marriage to be a fundamental right protected by the due process and equal protection clauses of the federal Constitution.

Herring leaned heavily on the 1967 Loving v. Virginia case, in which the Supreme Court overturned Virginia's ban on interracial marriage.

To argue that the framers of the Constitution never envisioned same-sex marriage is of no legal consequence, Herring argued. The Loving case, he said, taught that the Constitution "protects the fundamental right to marry, even if the way in which it is practiced would have surprised the Framers or made them feel uncomfortable."

Virginia's gay-marriage ban was enshrined in a state constitutional amendment in 2006.

"Many good and decent Virginians" undoubtedly voted for the amendment "because of sincerely held religious beliefs that homosexuality is wrong or that gay marriage conflicts with Biblical teachings," Herring argued. "But religion cannot justify state-sponsored discrimination."

 You can read the brief in full, HERE


Trending



Towleroad - Blogged