The Case Against 8
Unlike the 50-minute arrest to conviction timetables on "Law and Order" iterations, real legal battles and appeals span years. The fight to restore the legality of same sex marriage in California is carefully and completely recounted in Ben Cotner and Ryan White’s poignant documentary "The Case Against 8," a legal primer of one of the most important civil rights fights in modern times.
The two-hour film covers the lifespan of Proposition 8, which overturned the California Supreme Court’s 2008 ruling legalizing marriage equality six months after 18,000 couples had ceremonies. The ballot initiative was passed by popular vote and rescinded previous protections.
The American Foundation for Equal Rights, with support from director Rob Reiner and his wife Michele, assembled the well-constructed opposition against the "Protect Our Children/Stand Up for Righteousness" campaign, beginning with the joining of strange bedfellows: The Gore v. Bush rival attorneys, liberal litigator David Boies and prominent lawyer Ted Olson, who had argued in front of the Supreme Court fifty times and won over three-fourths of those cases. He shocked his right-wing brethren by declaring, "Marriage is a conservative value. We should want people to come together in marriage."
Some thought Olson was a double agent, but most welcomed his expertise and unexpected passion, cautioning him to "expect to be on a float in DuPont Circle or the Castro" at some point.
AFER vetted two couples to serve as plaintiffs: Berkeley’s Kris Perry and Sandy Stier, who had already had a ceremony with their four sons, families and friends during the half-year window, before receiving the dissolution letter; and Burbank’s Paul Katami and Jeff Zarillo.
Prop 8 proponents were at worst crackpots, and at best disorganized. Most defense experts and witnesses "melted away" when deposed. When asked, "What is the harm of gay marriage?" lawyer Chuck Cooper said, "I don’t know." The conservatives did get cameras banned from the courtroom, but this film presents audio portions of the U.S. Supreme Court arguments, as well as the litigants and lawyers reading salient parts of their court transcripts.
Interspersed among the legal strategies are the four’s personal stories about growing up marginalized and living as second-class citizens. "I know who I am," said Perry, whose is the only name on the motion. "It’s not about me. It’s about other people." Yet the Bakersfield native knows that having legal protections is everything. "This will help those living under a blanket of hate in their work, their outside relationships, and with their kids. People won’t have to come out every single day."
During this five-year process, "I had an aha moment," Perry continues. "I realized I was just coping. But I wanted to be happy and satisfied too." Numerous anti-8 experts lined up with logical testimony, such as "marriage has existed because it has changed."
The documentary captures the in-the-moment emotions when Prop 8 was struck down in California, when it was appealed in the U.S. Supreme Court amidst protests on both sides -- chants of "Gay, Straight, Black, White, Marriage is a Civil Right" -- and when Olson focused the arguments on "the emotional needs and desires of adults, including the pursuit of happiness."
On June 26, 2013, the Court ruled 5 to 4 to overturn Prop 8 in California as well as the federal Defense of Marriage Act (although same sex marriage is still illegal in 33 states). Two days later, Los Angeles Mayor Antonio Villaraigosa married Zarillo and Katami in City Hall while California Attorney General Kamala Harris re-legalized Stier and Perry in San Francisco.
Olson echoed Justice Ginsburg’s notion that "a prime part of the history of our constitution is the story of the extension of constitutional rights to people once ignored or excluded." And, as predicted, Olson, Boies, and the two couples will be Grand Marshals of this year’s L.A. Pride Parade.