How Gay Marriage Was Won: Prop 8’s Destruction Captured In HBO Movie
Two couples, a lawyer odd-couple, emotionally exhausting days of testimony, and a victorious day at the Supreme Court—one of the pivotal gay rights battles of recent years is evoked in ‘The Case Against 8.’
Blake Neely, I am billing you for the tissues. The emotional trajectory of The Case Against 8 is sweeping, and tear-eliciting, enough without the HBO documentary’s musical director’s devastatingly effective piano accompaniment too.
The two-hour film, which won prestigious awards at Sundance, SXSW, and the Vail Film Festival, follows the three-year legal fight of the two couples who were the figureheads of the fight against the voter-enshrined Proposition 8, which stated that California recognized marriage as something only between a man and a woman. It passed the same night at Barack Obama became president in 2008: a horrible kick in the gut, the worst hangover ever.
Neely’s piano playing doesn’t just strike up at the most moving moments in the film—when Kris Perry and her partner Sandy Stier, and Paul Katami and his partner Jeff Zarrillo, win one of a myriad of legal victories which lead them ever closer to overturning Prop 8—but also in the quieter stretches of the narrative too, because, as the film makes clear, three years is a long time, and those fighting to keep Prop 8 in place were determined to exhaust every legal recourse before admitting defeat.
The couples share the documentary's focus with Ted Olson and David Boies, the two lawyers famed for being on opposing sides in the courtroom drama that resulted in George Bush being elected president in 2000 (Olson, the right-winger, represented Bush, arguing—ultimately successfully—Florida should stop its recount; Boies represented Al Gore). Olson was later successfully nominated for the post of Solicitor General by Bush in 2001.
When this unlikely dream team came together to fight to demolish Proposition 8, many gays and liberals couldn’t believe it, and assumed Olson was somehow a right-wing mole, working to destroy the cause of equality rather than support it. But no, and one of the more surprising revelations of the film is that the men were friends anyway. Boies says that very few people can understand what a fight like the Florida count is and how it affects you—and for both men, only each other did. Olson takes on the case because, as he says, “Marriage is a conservative value.”
One of my favorite moments in the film sees Olson scowl when he thinks there is no pizza provided during one extended meeting there. Boies tells him there are only tacos. Olson’s expression at that moment makes you never want to be on the wrong side of him in court.
We learn, unsurprisingly, that the two couples were chosen by the American Foundation For Equal Rights—founded by Chad Griffin to fight Proposition 8—only after extensive vetting: everything in their pasts and presents were examined by experts and private detectives. The film spends time with them, but we never really get to know them. They speak in fine sentences, they are moving and dignified, they are quizzed in mock-courtroom setups designed to test their emotional strength, but we never get under the skin of their relationships. I kept thinking they were the most decorous couples I had ever seen on screen, gay or straight: The women are filmed talking nonchalantly about what kind of nutritious supper to prepare; the men, putting up their Christmas decorations. Perry kvetches when their twin sons are playing electronic games, and these lovely boys have only the kindest and most loving things to say about their moms, and that’s fine. But everyone is on their best behavior; perhaps the editorial judgment here is that anything less could be a bone to the other side.
That’s politic for the couples and AFER, but it doesn’t make for penetrating documentary-making. This isn’t an argument for seeing inside bedrooms or mucky salaciousness, just perhaps what discussions there were between the couples themselves about taking on the case (we hear snatches individually about this but not as a discussion between them), or following them home after a taxing day in court.
We hear about the emotional nature of the couples’ lives together—the parts that go well with swelling piano music—but not the nitty-gritty. The film is as controlled in what it shows as those AFER detectives were in finding out what they needed to find out about the quartet of public faces.
This is one of the weaker aspects of the documentary: The access to the couples, and to the internal meetings at AFER, are both presumably at the behest at the latter; and so we never get a sense of darker moments, or of internal wrangles, or disputes, or discussions, or dramas. We are not only on the side of the good guys, but we are only ever on the good side of the good guys. At a key moment in the film, the filmmakers are locked out of a room when big news breaks. This would be understandable if they were a news crew, and AFER were seeking to control the breaking of a story in that moment, but not for a film which will be coming out long after that moment has passed and when seeing that moment unfold would make a high point for the documentary.
But there are many tangible sensitivities in play. Chad Griffin, founder of AFER and since 2012 the president of the Human Rights Campaign, wonders—when the group faces initial opposition from other campaigning groups who think in 2010 it is “too early” to pick marriage as the central gay rights fight to have—why gay groups spend more time fighting each other than “right-wing nut jobs.”
Those right-wingers, indeed the opposition, are utterly absent from the film. In a phone interview, directors Ben Cotner and Ryan White said it was never their intention to make that kind of all-sides-represented film: they were gay Californians, and wanted to chart the fight-back against this iniquitous piece of discriminatory legislation. They said they had shot over 600 hours of film.
What the film does make clear is that the “other side” had very little in the way of arguments. Their expert witnesses withered under initial questioning. They could never exactly pinpoint the actual harm marriage equality would do to heterosexual marriage or children. In the end, the reedy voice of the pro-Prop 8 counsel is heard bleating at the Supreme Court that marriage equality undermines the primary purpose of marriage, which is procreation. But, as the justices ask, what about the heterosexual couples who do not have children for one reason or another, and what of the many lesbian and gay parents out there, too?
The counsel for Proposition 8 doesn’t sound convinced by his own argument, and the Supreme Court justices questioning his stupid contentions sound like teachers trying to be a patient with an unbelievably obtuse child.
The film has the tension of the timeline: the victories, followed by challenges, followed by victories, followed by challenges. The emotional moments that are unexpected are the most piercing, such as when Zarrillo prepares to give the first speech announcing the legal challenge, and he cries beforehand just because he needs to cry.
It is also extremely moving watching Perry say that it was only when she gave evidence, following the logic of her own thoughts, that she realized why the case, and what she and Stier were fighting for, was so important: that LGBT people become so used to living under “a blanket of hate,” that many, like her, “cope” with life, rather than living it as out loud, and with aspirations for so much more than that. When Zarrillo says on the stand that he loves Katami more than he loves himself, Katami gasps; and when he crosses paths with Zarrillo on his own way to the stand, Katami kisses him.
You cry watching The Case Against 8 not just because of that damn, masterful piano, but because it is a precisely observed embodiment of the fight for equality: the big speeches about the right to live equally and openly as anyone else alongside the late hours in offices, the big moments alongside the small, the recognition of the importance of relationships with those you love, and the bravery of putting yourself in the public eye, and coming home to a horrible phone message from a bigot telling you you’re disgusting.
On you fight. As Olson says, almost disbelievingly: what possible argument is there against equality, to maintain inequality? The collapse of the pro-Proposition 8 case shows there is no rational argument to discriminate. As much as you might weep watching the documentary, you may find yourself, like me, becoming increasingly angry that any of this has to happen in the first place: the sheer pointlessness of bigotry, its baselessness, the lack of argument to back it up in a court of law, and the amount of time and energy wasted on confronting its legitimization into statute.
As the pro-Proposition 8 side fights its ever-diminishing corner, you are reminded of Dorothy in The Wizard of Oz (the couples, Olson and Boies) alighting upon the Wizard (the pro-Prop 8 side), who despite his booming voice and pyrotechnics, is just a silly man with some levers behind a curtain. How did bigotry attain such power, and how was it so encoded into our laws? That’s the outrage you feel as you watch The Case Against 8.
The title itself becomes bothersome, because the case for 8, and how it suddenly washes away and implodes off-camera, is almost more tantalizing than what we are watching: this viewer wanted to see the office meetings and legal discussions behind their scenes.
The directors told me the most difficult scene to film was the last. The couples had just won their 2013 ruling in the Supreme Court, seeing the final extinguishing of Proposition 8 (the same day as Edie Windsor's landmark case saw off the Defense of Marriage Act), and now they wanted to get married—the women in San Francisco and the men in Los Angeles.
If there is a “whoop” moment in the film it comes when Kamala Harris, the state’s Attorney General, about to marry Perry and Stier in San Francisco’s City Hall, tells the clerks holding up the men’s efforts to marry in Los Angeles that she is instructing them to marry the men. Like, now. Or, as she says bluntly, “You must start the marriage immediately.” This is when the piano really gets going. You will need tissues as the two couples finally exchange their vows. The directors told me it was the best moment to film, but also the most difficult, as the crew themselves had spent so long with the couples they were extremely emotional to be with them for this moment.
Is the documentary too well-behaved? Yes. But it is also incredibly moving and instructive to watch the inching towards social justice. The directors told me that, like Perry and Stier say so eloquently in the film, that they hope the film has a wide reach and purpose. A positive result for equality, they say, sends a powerful message to those living in places of not-such great acceptance, who feel lonely and isolated, that while feeling all of that, look, the law finally recognizes your equal worth to everyone else.
The documentary makes clear that the fight for marriage equality itself is far from over; but what it doesn’t ask, and it should even in passing, is that the gay rights movement’s real challenge is to find a focus after marriage equality. Equality is not just about marriage, although it has seemed like it is for so long now, and sometimes equality isn’t just about what can be enshrined in law. Those fights, more complicated and less camera-friendly, must be confronted long after the last bouquet has been tossed, confetti blown away, and last chord of that damn fine piano been played.
The Case Against 8 goes on release in selected cities from today, and will be shown on HBO on June 23 at 9 p.m. This article was amended on June 10, to clarify that the Prop 8 participants' case was not linked to the striking down of DOMA (which was linked to the case of Edie Windsor).