By Katherine Kilkenny | Indiewire January 19, 2014 at 3:17AM
Taking place over five arduous years of legislative gridlock, "The Case Against 8" could have easily delivered a searing indictment of our country's lagging recognition of same-sex marriage. Yet the first directorial partnership and Sundance debut of former Hollywood executive Ben Cotner and director Ryan White (2013's "Good Ol' Freda") refuses to capitulate its compassionate treatment of all players in the five-year same-sex battle Hollingsworth v. Perry in the interest of greater purpose. Their emotionally-wrought take on the case takes it out of landmark territory and into the terrain of momentous historic significance.
While two couples star in the Hollingsworth v. Perry trial that dominated the news last summer, "The Case Against 8" attributes the lawsuit that started it all to a third odd couple operating behind the scenes. The film begins with the unlikely union of former Bush v. Gore opponents Ted Olson and David Boies to lead the challenge to California's Proposition 8, which defined marriage as a legal partnership between a man and a woman and effectively denied same-sex couples of its attendant federal benefits. It turns out Olson, the conservative powerhouse lawyer who reaffirmed Bush's presidency in 2000, defines marriage as a conservative value for "two people who love each other and want to live together in a stable relationship." Boies was always the more likely supporter, though the friendship developed during Bush v. Gore remains something of a miracle that serves to make the film's point for a case transcending partisan boundaries.
The legal dream team vetted plaintiff candidates in a rigorous process that the film likens to the search for political candidates in an apt analogy. Certainly the chosen couples, Kris Perry and Sandy Stier of Burbank and Paul Katami and Jeff Zarrillo of Los Angeles, train to present flawless fronts in court during the opening act. The emotional fissures that erupt in the law office during the preparation for the January 11, 2010 hearing show the anxieties hidden from the flashing cameras that nagged the two couples over the course of the five-year case. However, through the preparation, the couples come to accept their public roles. In one memorable response to a practice question about discrimination, Kris realizes her past traumas apply to an entire population. "It isn't just me, but it is me," she says. It is just one of the many reflections the film casts on a case designed to mine the plaintiffs' personal feelings for the purpose of riding a broader current of emotion.
When the defense, powered by an organization called Yes on 8, appealed the 2010 win in the Ninth Circuit, and through further appeals over several years brought it to the U.S. Supreme Court in July 2012, the plaintiffs narrate the trials, bringing a human perspective to the legal frustrations. Cotner and White do so wisely, for their subjects are natural storytellers. Small character details paint a vivid picture of the otherwise overexposed trial: Jeff recalls the way Ted Olson flips his tie over his shoulder when he eats pizza (Olson, we learn, is crazy for pizza). To reenact the dialogue, the plaintiffs simply read the scripts of their testimonies as the stark documents conveying intense court dialogue fill the screen, a trope that serves some immediacy back to the audience. As these documents come to quote the 14th Amendment, the film exposes its investment in the bones of the Constitution for a better future. With the persuasive comparisons Olson and Boise make to interracial marriage, women's rights, and African-American civil rights movements, it is difficult not to share in its optimism.
Cotner and White's film pulls at the heartstrings without ever coming off as propaganda due to their propensity to let the evidence speak for itself. The Yes on 8 viewpoint manifests in commercials and grainy C-Span footage with illogical, even comical, arguments. One neat gag has defending attorney Charles Cooper's rhetoric undermined by a precarious logo attached to his podium. And with a deft hand that avoids contrivance, Cotner and White suggest behind-the-scenes family bonds in lingering shots on fragmented objects. There are the tortillas with egg and hot sauce that Sandy cooks for Kris in their classic Berkeley two-story. The ornament of two reindeer in stockings on Jeff and Paul's Christmas tree bears their names side-by-side. Olson and Boise chose plaintiffs on the basis of same-sex couples who behaved just like everyone else, and the still shots of their homes and family photographs interspersed through the film show all the trimmings of a wholesome American family.
We all know what happened to Proposition 8 from CNN and all those Buzzfeed GIFs of running interns. "The Case Against 8" knowingly nods at its plaintiffs' success from the beginning. The film's stakes lie in the implicit illegality of same-sex marriage in 33 states still, and the systemic loopholes that allow for endless appeals. The real villain of "The Case Against 8," therefore, is time. The years needed for change as in other civil rights movements echoes in the slow burn of win-appeal we suffer as an audience in the film. "The Case Against 8," with its intimate argument in favor of humanity, could have something to teach the prosecutors leading that fight.
Criticwire Grade: A-
HOW WILL IT PLAY? "The Case Against 8" will air on HBO in June, when it should garner sizable ratings due to national interest in the story.