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How Must-See ‘The Case Against 8’ Got Made, from HBO to Its ‘Fairy Tale Ending’

How Must-See 'The Case Against 8' Got Made, from HBO to Its 'Fairy Tale Ending'

The charged opening sequence of "The Case Against 8" (HBO, June 23) catches former Solicitor General Ted Olson in the thick of a dress rehearsal. With the curtain call of oral arguments before the Supreme Court looming, his fellow legal eagles pepper him with questions the justices might ask; the montage quickens with the soundtrack’s strings; and the scene culminates in Olson’s rousing final remarks. "If this is unconstitutional, it’s unconstitutional today," he says of Proposition 8, the gay marriage ban California voters passed in 2008. "That’s why we have a Constitution, that’s why we have a Fourteenth Amendment, and that’s why you have the job that you do."

As filmmaker Ryan White explains, this unaccountably exciting piece of legal wrangling became part of the final product by dint of documentary serendipity.

"Ted didn’t want us to film it," White, who co-directed and produced the film with ex-acquisition executive Ben Cotner, said with a chuckle. "Then he said, ‘You can come in for ten minutes’ — it lasts for an hour — ‘then I need you to leave quietly.’ It would have been more distracting for us to leave, because we had two cameras on different sides and everyone was in the zone, so we just didn’t, and he never looked up and said, ‘Leave,’ so he let us film the whole thing. Now he says he’s so glad he did, because he loves that scene."

When I interviewed White recently, it quickly became clear that both good fortune and hard work brought "The Case Against 8" to fruition. The result is a humane, richly detailed portrait of what might one day be regarded among the most consequential court cases of our time, an intimate history of an unprecedented wave of political change for LGBT Americans. From the beginning, though, nothing was assured, least of all the eventual outcome.

"Ted and David [Boies, Olson’s co-counsel on the case]… were open to the idea of us filming, which we were surprised by, because I think it goes against every bone in a lawyer’s body to allow a documentary crew to follow them this closely," White said. "I don’t think they realized how closely we were going to follow them from day one, and no one knew it was going to take five years, so no one knew that we would have spent this amount of time together by the end."

White and Cotner met at the Sundance Film Festival in January, 2009 — just two months after the passage of Proposition 8, and shortly before the federal lawsuit challenging the ban was filed. Cotner, an executive with extensive experience in acquisition and production at Paramount Pictures and Open Road Films, had never before shot a movie when he received access to the legal proceedings from the American Foundation for Equal Rights (AFER). He approached White about documenting the first stages of the case, but it was only after the pair met plaintiffs Kris Perry, Sandy Stier, Paul Katami, and Jeff Zarrillo that the film’s delicate balance of case law and character study came into focus.

"I think if you had asked us [in 2009], we would have thought it was going to be a much more of a legal procedural film. And Ben and I are both legal nerds, so that didn’t disappoint us," White told me. "But we fell in love with the plaintiffs. I mean, it was perfect casting for our film. They cast them for the lawsuit, but right when we met them, it was like, these people, they’re so articulate, all four of them, which is what you want in a documentary."

From 600 hours of raw footage collected over the course of five years, Cotner, White, and veteran editor Kate Amend ("Into the Arms of Strangers," "The Long Way Home") shaped an unmannered portrait of four courageous Californians enduring a taxing emotional experience, all without losing view of the attorneys’ acumen. (You’re likely to learn more about the arduous logistics of constitutional law from "The Case Against 8" than you did in high school civics.) When it comes to the film’s most arresting aesthetic choices — the decision to open with Olson’s rehearsal; the inclusion of the plaintiffs’ moving recitations of court transcripts, with the documents themselves displayed on screen — White credits the encouragement and keen eye of longtime HBO Documentary Films President Sheila Nevins.   

"We always thought it was such an electric scene, and some people were worried about that scene because it’s so legal nitty-gritty," White said about Olson’s opening sparring match. "Sheila said, ‘If you want to throw people into it, why don’t you try it at the top?’"

But dealing with Nevins, who many recognize as "a force to be reckoned with," was not without trepidation for the filmmakers. 

"The first time we showed Sheila the film, you know, you’re terrified to even go into Sheila’s office, and you don’t know what she’s going to say, because she gives you no indication of whether she liked it or not," White recounted. "When we got to [the transcript readings], she said, ‘This should never work in a movie, and if you’d told me you were going to do it, I would have told you not to do it… [but] it’s my favorite part of the movie.’"

While "The Case Against 8" is clearly a work of political advocacy, the co-directors, both gay Californians, deny this. Yet the film ultimately forges a compelling argument on behalf of marriage equality. In this, it follows in the footsteps of its subjects, who won "the first decision by a federal court that under the federal Constitution, which obviously applies to all fifty states, that marriage discrimination was unconstitutional," as Boies notes near the end of the film. Like the long journey that brought "The Case Against 8" from nascent idea to final cut, the legal challenge to Proposition 8 arrived at a conclusion even the old studio hands might not have scripted. 

"We got the fairy tale ending," White said, reflecting on the decades of political organizing that preceded the Supreme Court’s decision and the work that continues apace. "We got the Hollywood ending with our film."

"The Case Against 8" premieres on HBO Monday, June 23 at 9pm.

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