Emotional and analytical by turn, The Case Against 8 is a thoroughly engaging documentary that draws back the curtain on one aspect of perhaps the most contentious legal battle of recent years: the fight for marriage equality that went all the way to the U.S. Supreme Court.
The “8” in the title doesn’t refer to a group of people but rather to Proposition 8, the successful California ballot initiative that in November 2008 defined marriage as existing between a man and a woman.
The American Foundation for Equal Rights was formed to file a federal lawsuit to challenge Proposition 8, and filmmakers Ben Cotner and Ryan White approached the organization to make a documentary about that process. They filmed more than 600 hours of footage over a five-year period, and the access that kind of perseverance resulted in gives Case Against 8 an insider’s sense of immediacy and personal connection.
This is not a pro-and-con documentary examining both sides of an issue but a view from one side of the divide. One of the things that makes it involving, however, is a look at the carefully planned and executed mechanics of the lawsuit, the behind-the-scenes complexities that don’t often get any kind of public exposure.
The film opens, for instance, with a glimpse of the grueling mock oral argument attorney Ted Olson was put through just before he was to argue the case before the U.S. Supreme Court in March 2013.
Case Against 8 then flashes back to earlier days, and we hear the unusual story of how Olson, the most prominent conservative lawyer in the country — George W. Bush’s Supreme Court advocate in fact in the 2000 presidential vote — became one of the lead attorneys for a case a number of people in the LGBT community felt was being pushed before the country was ready for it.
Olson’s participation was so unlikely that some thought he was a mole for the other side. Equally remarkable was Olson’s choice for co-counsel: David Boies, who represented Al Gore in the 2000 Supreme Court case. “The only person equally obsessed with the case,” Boies explains about the Bush-Gore link, “is the person on the other side.”
Also complex was the procedure used to pick the two couples (Kris Perry and Sandy Stier from Berkeley and Paul Katami and Jeff Zarrillo from Burbank) who would be the plaintiffs in the lawsuit.
“They had to be people who are just like everyone else as well as obviously just like everyone else,” one of their attorneys shrewdly explains. “Which is not the same thing.”
Case Against 8 follows all the twists of this complicated story, spending most of its time on the case’s 2010 San Francisco trial before District Court Judge Vaughn Walker, a trial that was especially difficult for cinematic purposes because cameras were banned from the courtroom at the last minute.
The directors expertly compensated by having individuals read back their testimony, showing the printed version on screen and interviewing the participants after the fact.
Case Against 8 especially benefits, as the lawsuit itself did, by having four plaintiffs who are thoughtful and well-spoken. All those hours in front of the camera has made them comfortable with the filmmakers, and being taken into these lives at such pivotal moments makes for quite satisfying drama.
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