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How do you make a compelling documentary on a subject so recently given saturation news coverage that pretty much every informed audience member is going to know the outcome? Co-directors Ben Cotner and Ryan White answer that question in The Case Against 8. Exhaustively tracking the five-year battle to overthrow California’s ban on same-sex marriage, they distill the dense legal process into a lucid narrative while illuminating the human drama of the plaintiffs, and by extension, the countless gay men and lesbians they represent. That makes for a stirring civil rights film that is both cogent and emotionally charged.
Some may feel that the sense of urgency surrounding this issue has ebbed since Section 3 of the Defense of Marriage Act was declared unconstitutional last year, recognizing marriage equality at the federal level. But the film, which airs on HBO in June, tempers its final-act euphoria with a reminder that 33 U.S. states continue to deny gay men and lesbians something now widely recognized as an inalienable right.
That number appears certain to keep dropping, in line with the dramatic shift in public opinion in recent years. But given that many states – like Utah at present – will continue to appeal against legalized same-sex marriage, The Case Against 8 remains a powerful advocacy film as well as one of historical record.
Perhaps even more interestingly, Cotner and White’s all-access pass to a rollercoaster legal odyssey provides an uplifting demonstration of functioning bipartisanship, something exceedingly rare in American politics.
The leading conservative lawyer Ted Olson shocked right-wing pundits by agreeing to represent the California plaintiffs. Even more startling was Olson’s decision to reach across the aisle and bring on board his liberal counterpart, David Boies, as co-counsel. That the two men who had been on opposite sides of the Bush v. Gore case in 2000 would team up to champion the rights of gay men and lesbians still seems almost surreal.
Olson emerges here not only as an unlikely hero, but a man of enormous integrity and open-mindedness. People eager to label all conservatives as bigots need to take a look at this guy. The mutual respect and friendship between the chief lawyers is inspiring, and their profound idealistic investment in the case is apparent at every turn. There might actually be more humanization of the legal profession in less than two hours here than there is in multiple seasons of The Good Wife.
The film begins in November 2008, when California passed Proposition 8, revoking the marriage rights of same-sex couples after six months of legalized unions. The American Foundation for Equal Rights, which organized the controversial lawsuit against the state, needed two California couples to serve as plaintiffs. Wholesome relatability (“people who were just like everybody else”) was a key requirement, but the frustrating lack of detail on the vetting process makes this read simply as non-threateningly white. More upfront discussion of this part of the story would have been useful.
AFER settled on Kris Perry and Sandy Stier, a lesbian couple from Berkeley with four sons; and Paul Katami and Jeff Zarrillo from Burbank, who see the domestic partnership route as acceptance of second-class citizenship. Much of the heart of the movie is in these families’ interactions – their unguarded displays of nerves or courage; their moments of tenderness or overwhelming emotion. The film makes it clear this was not some heroic crusade undertaken for personal glory, but a choice involving considerable sacrifice and stress. Five years of lurching between repeat victories and setbacks before the final breakthrough obviously demanded strength of character.
Making propulsive use of Blake Neely’s score and Kate Amend’s fluid editing, the filmmakers shadow Olson, Boies and their team as they drill the plaintiffs and watch key witnesses for the state fall away. There are digs at some of the more absurd attempts to validate Prop. 8, such as a patently bogus study on “Gender Disorientation Pathology,” or an alarmist “Yes on 8” commercial.
In general, however, the film strives to be as even-handed as possible. Cameras linger just long enough to register anti-gay protesters; anonymous phone calls spewing hate rhetoric are heard. But the directors are careful not to milk the ugliness surrounding the case for melodrama. A decision appears to have been made to keep this very much a positive story of unwavering commitment and ultimate victory.
The court’s decision to block the broadcast of the trial might have been a blow in documenting the events. But Cotner and White get around that deftly, having lawyers and witnesses read from transcripts, the text of which is often spread across the screen for dramatic impact. Some of the twists in the trial are so vividly discussed that we have the illusion of being there, yielding fascinating insights into the justice system and the constitutional rights of all Americans.
This was one of the most widely discussed and divisive cases in recent history, and its reverberations continue, with more states preparing ballot initiatives on same-sex marriage. We may know where it ends, but the film’s methodical focus makes the journey there a momentous and moving one.
Venue: Sundance Film Festival (U.S. Documentary Competition)
Production companies: HBO Documentary Films, Tripod Media, Moore’s Filmed Goods and Services
Director-producers: Ben Cotner, Ryan White
Executive producer: Sheila Nevins
Music: Blake Neely
Editor: Kate Amend
Sales: HBO Documentary Films
No rating, 109 minutes.
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