“This to me was a defining civil rights issue,” attorney David Boies recently told The Wall Street Journal about taking on the legal fight to strike down Proposition 8. “A wide variety of rules and regulations…were generated from the idea that somehow gays and lesbians were different in a defective or inferior way. By going for marriage equality, you struck at the heart of that bias.” It’s an accurate summary of the approach Boies and co-counsel Ted Olsen used in their long, long journey from California all the way to the Supreme Court, in fighting the ruling that eliminated the right for same-sex couples in the state to marry. It was a case that didn’t just rock The Golden State, but the entire country, with the ruling a potentially game-changing, precedent-setting one that would have an effect across the nation. It was an issue that touched on politics, religion, “traditional” family values and more, and forced a conversation about how inclusive and tolerant a society America was ready to be. Unfortunately, you won’t find any of those latter issues at the front of center of the award winning documentary, “The Case Against 8.”
Co-directed by Ben Cotner and Ryan White, the film is an almost overly thorough look at every single step along the way in the battle to bring Prop 8 down. And while that’s admirable, and gay rights is certainly a fight that needs to be documented, the minutely detailed “The Case Against 8” has the curious effect of dampening the drama through its approach. The case and film kicks off with an announcement that already got the legal team making headlines: David Boies and the traditionally conservative Ted Olsen—who previously were on opposite legal sides during the contentious recount of the 2000 Bush/Gore election—were going be working together on the case. It was an immediate blow to anyone attempting to turn Prop 8 into a partisan issue, as Olsen is as Republican as they come, having worked with George Bush, Rudy Giuliani and more recently, Paul Ryan. And the pair, likely split ideologically on many issues, come together here in a powerful way, but you won’t find much about how their work over five years on this case perhaps found them on new common ground, or with a newfound respect. In fact, very little perspective is given by either lawyer unless it pertains to the case at the hand.
And that lack of personal context is indicative of much of “The Case Against 8.” As Boies and Olsen start their work, the faces of the case need to be found, and they arrive in gay couples Kris Perry and Sandy Stier, and Jeff Zarrillo and Paul Katami. The former are parents to two boys from previous relationships, while the latter are a devoted couple who are awaiting to legally marry so they can start their own family, as they value the institution. They are all passionate, well spoken and the exact right voices any lawyer (or PR team) would want to have face the media. And while the filmmakers have plenty of access, again, once “The Case Against 8” moves outside the box of the legal proceedings, the focus becomes muddled. We learn very little about the community, colleagues or friends of Perry, Stier, Zarrillo and Katami, and as a consequence, the impact of this very public case on their personal lives is only perfunctorily explored. And as the documentary goes on (and sometimes drags on) it becomes clear that the directors, already knowing that history will declare victory in the case, are intent to show the elbow grease that went into achieving that victory, but not so much the vulnerability the plaintiffs had to endure on national level.
Indeed, even Rob Reiner and screenwriter Dustin Lance Black—famous members of the American Foundation Of Equal Rights, who lend their support to the case—don’t get interviewed directly for the documentary. It’s really the legal team who are the stars here. And that will essentially test your mileage with “The Case Against 8.” Are you interested in how, legally speaking, gay rights triumphed over prejudice driven policy? Or, are you interested in how Prop 8 brought talk of contemporary gay life front and center, not just on the coasts, but across middle America? The entire movie is so focused with what’s happening in conference room and courthouses, it mostly completely misses what a galvanizing moment it was when Prop 8 was struck down. It wasn’t just a legal victory or moral victory, but a victory for basic decency and humanity in the United States, where men and women, no matter of their sexual orientation, deserved the same rights constitutionally as anyone else.
To call “The Case Against 8” a missed opportunity would be inaccurate, because it does accomplish its goals of covering every maneuver in rocking Prop 8 back and forth until it tipped over. But there is a larger cultural context that isn’t quite ignored, but taken for granted. While legal history was undoubtedly made, the social perception of gay marriage will likely forever start with Prop 8. And that story needs just as much documentation as any of the motions filed, press conferences assembled and photo ops organized. [C]
“The Case Against 8” airs on HBO today at 9 p.m. EST.