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Film Review: 'The Case Against 8'

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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

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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'

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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


Ted Olson and David Boies: 'We're Trying to Bring Equality to Every State in the Union' — VIDEO

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Prop 8 attorneys David Boies and Ted Olson were in Austin yesterday at the LBJ Civil Rights Summit and spoke to Andrea Mitchell about the fight for marriage equality in Virginia (the case they're currently leading) and the other cases around the country.

Watch, AFTER THE JUMP...

And here's a report on the summit from the Houston Chronicle:

"We're on the verge of establishing the equality of this group of American citizens," said David Boies, a noted attorney said during the opening session of the LBJ Civil Rights Summit. "The courts have said marriage is a fundamental right."

Echoed Theodore Olson, a former U.S. solicitor general: "This country is changing very rapidly, thank goodness," far faster than racial equality advanced in the era during which President Johnson signed into law the landmark Civil Rights Act in 1964, 50 years ago this month.

"The more than it is accepted that your sexcual orientation does not make you different," Olson said, "the more people realize gay and lesbian people are the same as everyone else."

Continue reading "Ted Olson and David Boies: 'We're Trying to Bring Equality to Every State in the Union' — VIDEO" »


AFER paid $6.4 million to Ted Olson and David Boies' Law Firms in Prop 8 Case

The_Case_Against_8_credit_Diana_WalkerAFER

The Washington Blade is reporting that the American Foundation for Equal Rights paid more than $6.4 million to the two law firms that successfully argued against California’s Proposition 8.

Olson_boies2009-2013 tax filings indicate former Republican U.S. Solicitor General Ted Olson’s law firm – Gibson, Dunn & Crtcher LLP – received nearly $6 million from AFER for “legal and ancillary legal expenses,” while David Boies’ law firm – Boies, Schiller & Flexner LLP received $468,089.

The paper reports that these expenses include payments to expert witnesses who testified against Prop 8, travel and living expenses for lawyers who lived in San Francisco for a month during a three-week trial over which now retired U.S. District Chief Judge Vaughn Walker presided in 2010, and legal research costs.

“AFER’s case resulted in the return of marriage equality in California for a fraction of the cost of a ballot measure,” AFER Executive Director Adam Umhoefer told the Washington Blade on Tuesday. 

Tax filings also indicate AFER raised $14,900,467 between April 23, 2009, and March 31, 2013, that Umhoefer told the Blade includes a “large amount” of contributions from Republican donors. He added his organization estimates the Prop 8 case also generated millions of dollars in earned media coverage for which it did not have to pay.

One such piece of media that's generating quite a bit of buzz is The Case Against 8, the film that goes behind the scenes of the high-profile trial. The film has won multiple awards from film festivals this year, including last week's SXSW in Austin. 


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