Filmmakers Ben Cotner and Ryan White kicked off their festival
run of “The Case Against 8” with a bang,
receiving the Directing Award: U.S. Documentary at the 2014 Sundance Film
Festival, where it premiered in January. They have since been touring the
country, screening the doc to widely positive critical and audience reception. To
be released in select theaters this Friday, June 6th and aired by HBO starting June 23rd, “The Case Against 8” is the single cinematic
document of the five-year landmark case Perry v. Schwarzenegger, which resolved in the dissolution of Proposition 8, returning the right to marriage to same-sex couples.
The film primarily focuses on the four plaintiffs who filed
the lawsuit against California’s Proposition 8, passed the same day as President
Obama’s 2008 election, which restricted marriage rights to heterosexual couples.
Claiming the law to infringe on constitutional rights, the prosecutors
succeeded in bringing the case to court, first in California and eventually all
the way to the Supreme Court. In the instance of one of the couples, Kris and Sandy,
they had previously been married and received a state notice
retracting the legitimacy of their union. Emboldened by the astonishing, sudden deprivation of their right to be legally recognized as a married couple propelled them to seek justice through legal aid. Alongside their story is an intimate,
behind-the-scenes look at the preparatory work of the legal team, helmed by its
principal lawyers Ted Olson and David Boies — once famous for going head to head
in the case that declared George Bush as the winner of the 2000 presidential
While preparing to do promos for HBO in New York, Ben Cotner and Ryan White sat down with Indiewire to discuss the making of their powerful film. We
learned of the personal impetus behind the undertaking of such a vast project, the intimacy that developed between them and their subjects, and how their own relationship to
marriage has changed along the way.
What is your personal
connection to the film?
Ryan White: Ben and I met five years ago at Sundance. That
was January 2009, and Proposition 8 had just passed in November 2008. And a few
months later we started making this film together when we found out the lawsuit
was going to be filed. We were gay Californians, so we had a lot at stake.
Whether the case won or lost, and what happened to Proposition 8, directly
affected our lives. We had worked on films but never something in which we had invested such interest. In that way, it
was an extremely meaningful five-year journey. I don’t think I would have wanted to work
for five years on a different film, in which I didn’t have a personal stake.
Because there was so much riding on what happened, it was a really great
Is that what kept you
Ryan: Yeah, we had no choice but to keep going. Once you’re
three or four years in, you’re like, “I’m going to finish this fucker.”
Ben Cotner: Once your credit card is maxed out, you really
have to keep going. Getting to know the people involved and developing
relationships with them as they’re going through this with them, as it’s getting
appealed and stalled, and there’s so many ups and downs to that—it was an
emotional rollercoaster in some respects. That day standing on the Supreme
Court steps, waiting for the decision to come out, paid off for all of that
Did you have doubts
about the outcome of the case?
Ben: Yeah, absolutely. When the case was filed it was
controversial as to whether or not the case should even be filed because many
people thought it was too soon for the Supreme Court to decide on this. All
along, when this first started, there wasn’t even supposed to be a trial. That
was one of the big curve balls that the Judge at the time threw. Having people
come in and testify on these issues had never been done. This had never before
been discussed in a federal court , in a scientific manner. He heard experts—some
of the top in their field—and plaintiffs testify as to the harm Proposition 8
was doing to them and their families. Hearing evidence like that was really
impactful. No matter how strong the case, you never knew how the judge was
going to rule. And even after Judge Walker’s decision came down, there were
still questions of whether the ninth circuit would take the case or whether the
Supreme Court would even hear it.
As filmmakers, that was really stressful for us because we
didn’t know whether or not we would have an ending to our film. The case was
exciting in itself, but of course our dream as filmmakers was that the case
would make it all the way to the Supreme Court. So we really lucked out in that
What was most at
stake for you in the film and trial?
Ryan: It’s strange to make a film that directly affects your
life. I’m not in a relationship, but Ben is. What happened at the end of the
film could lead to having a different life, and that doesn’t happen often for
documentary filmmakers. This is my third film, and Ben has worked on tons of
films. You don’t get to work on films where the outcome affects you personally.
Also, we had watched Kris and Sandy and Paul and Jeff go through the ringer for
five years. We saw them put their families on the line and how hard it was for
them at times. So, you want them to have their happy ending. You’ve seen them
put themselves out there, their bravery, and go through rough periods—and so
that was also at stake. If we had lost the Supreme Court, we would have been
devastated for ourselves—and all Californians—but especially for the four of
them, our main characters. To not see them get their fairy tale ending and
know how hard they worked to get there would have been pretty devastating.
Did your own idea of
marriage in-itself change?
Ben: Totally. Going into this, I don’t think either of us
had particularly strong feelings about the hetero-normative version of
marriage. But that changed once we sat at the trial and we heard people talk—especially
people with children and those planning on having children. The root of gay and lesbian relationships is love,
and the government saying that your love is as good as anyone else’s love is an
incredibly powerful thing that neither of us considered the importance of
before that trial.
Ryan: It’s not that I didn’t want to get married; it’s that I
knew it wasn’t for me. You grow up thinking it wasn’t for your type of people.
You never even think it’s a possibility, so I never even allowed myself to
entertain the idea that I would have it one day. So I think I just convinced
myself that I didn’t want that. It’s the first time I’ve lived in a state where
marriage equality is legal, and the fact that’s happening left and right at
this moment, where all these states are striking down bans, is mind-blowing—the
swiftness with which this has moved.
I’m from Georgia, and Ben is from Indiana. Within a few
years, there could be marriage equality there. I grew up in Georgia, and I
can’t imagine how different that will be for kids growing up in Georgia now, if
that’s the norm. I think it’s exciting—the sea change that’s happening right
now. I think it’s going to be especially powerful for LGBT youth, like Kris
says in our film, to not have to grow up feeling like you’re different. If you
grow up, and your government treats you the same, then you don’t know the
Ben: We’ve screened the film around the country now at
various film festivals, and we’ve had straight couples come up to us and say
that once they’ve seen the film, it makes them really appreciate their marriage
and that they’ve taken it for granted and now see more of a value in it. For
gay people, it has a deep meaning; but it’s also something that resonates with
a lot of straight people, as well.
How did the
codirecting collaboration work?
Ryan: We beat the crap out of each other. No… it was a
difficult doc to film because it was very unpredictable. Lawsuits are so
unpredictable. Ben had a full-time job, and I made two other films while I was
making this film. Co-directorships aren’t always easy, but I think it was important
with this film. At a moment’s notice, you found out you had to fly to D.C. or
San Francisco—right now, not even tomorrow. We filmed it ourselves, too; we’re
both behind the camera. The fact that we were able to do that, we could pick up
the slack for each other. It was very collaborative in that way. In the editing
process, as well. Ben and I had a common vision for the film but different
sensibilities. That was fun in the editing room. And we had an amazing editor
named Kate Amend, who also had different sensibilities. That’s the fun part—the
give and take.
You were both behind
the camera at the same time?
Ben: Yeah. There were so many people involved in this case.
There were hundreds of lawyers, four plaintiffs, and press organizations. To
keep up with everything, we also had a co-producer, Rebecca Ferguson, shooting with us for a lot of the trials. There would be so many meetings going
on, so we tried to cover as much as possible. We had 600 hours of footage.
Ryan: It would have been nice to have the luxury to hire a
DP, which we did only for the interviews, to have a perfectly shot film. I
don’t mind it for our film, though, because it aids the fly on the wall aspect
and the intimacy that we’re not the perfect cameramen. We couldn’t hire third parties
to come because the lawyers would have freaked out. We were familiar faces and
imbedded in the team, so they trusted us. We always had to be the ones behind
Ben: Having that degree of intimacy was really important to
us. We didn’t want to distract, so lighting or micing people wasn’t always an
Did that intimacy
come from shooting or was it established prior?
Ben: We had never met any of the plaintiffs before this, so
we met with them and talked to them about our vision and what we wanted to do.
At the time, we didn’t know this would be a historic case– that it would go to
the Supreme Court or that it would even go to trial. To us, it was an
interesting concept to have a conservative and a liberal famous lawyers coming
together to talk about an issue in a way that isn’t partisan. We were drawn to
that and explained that vision to them. Fortunately, they were receptive.
first, the lawyers were apprehensive; it’s against every bone in their body to
allow people to film such confidential things, especially with their clients
present. I think they all believed there was an importance to having
transparency to this because they believed so much that what they were doing
was the right thing. They weren’t afraid to have people see what they were
talking about. We had to keep it all confidential until they resolved the case,
but it did take a long time to build up a comfort and to have them comfortable
with the cameras around in general. But we did, and we got to the point where
they didn’t even notice the cameras.
You achieved an effective balance of talking heads, found footage, and the footage you shot of the events and people. How did you manage that?
Ryan: If you’re shooting a vérité documentary, you want to
use as much of that footage as possible. So we never wanted to rely on stock
footage or interviews. We wanted our film to be as much as possible the pulling
back the curtain of the process. We used the interviews to link that. That’s a
balance in the editing room. We were always avoiding stock footage as much as
possible, unless we absolutely had to—as in Obama getting elected. But our
cameras were always running, so we had footage of almost everything.
Ben: There was an interesting challenge as a filmmaker that
each stage of the trial presented different challenges. In the district court,
you had no sound or video recording of the trial. In the ninth circuit, you had
full video and audio; and in the Supreme Court, you only had audio. So, we had
to find a different way of structuring each of those scenes using different
types of media. That was a fun challenge for all of us.
Did the plaintiffs
have any say in what ended up in the final film?
Ryan: No, but we would have respected something if it really
upset them. It’s a credit to them that they never asked. And the lawyers didn’t
either. I thought for sure that the lawyers would have wanted some editorial
control or final say over what went in and out. But whatever they let us film,
we could include or not include, freely. So they didn’t see the film until it
was finished. Ben and I have a lot of respect for Kris, Sandy, Jeff, and Paul,
and we’ve grown to love them. I can’t imagine that if there were something that
they really didn’t want in the film, that we would have included it. Why? We
had over 600 hours of footage. We had amazing scenes that ended up on the
cutting room floor, so we always could have used something else.
Were you hoping to
change people’s minds?
Ben: A lot of the audiences we showed it to have come up to tell
us that they wanted to show it to their parents, who weren’t necessarily
Ryan: It’s not us wanting to change people’s minds. We had two
hours, the story of four people, and an audience; and we hoped to have people
leave having got to know them. Everyone thus far has been happy for them,
regardless of what side they were on.