BY DUNCAN OSBORNE | Early in the HBO documentary “The Case Against 8,” Chris Dusseault, a partner at the law firm Gibson, Dunn & Crutcher, is shown telling the two plaintiff couples in the lawsuit that struck down California’s ban on same-sex marriage that they are the core of the case.
“You guys are the reason the case is happening,” Dusseault said. “You are the case really and everything else is evidence that explains why what you are saying is right, but it all flows from you.”
Moments later in this 112-minute film, Ted Olson, also a partner at Gibson Dunn, has a different take on the couples’ status. “It’s an awkward thing to be stuck in the middle of this and made into a symbol,” he said.
We know from Jo Becker’s book about the case, “Forcing the Spring: Inside the Fight For Marriage Equality,” that the couples did not bring this lawsuit. They were recruited and carefully screened by Chad Griffin and Kristina Schake, the PR experts who founded the American Foundation for Equal Rights (AFER), the group that conceived of and funded the case. In the documentary, Schake tells us they hired opposition researchers and “private investigators” to dig into the couples’ backgrounds.
Are the couples the reason for the case or are they props, or “symbols” as Olson said, in an elaborate staged event produced by lawyers and publicists? “The Case Against 8” does not explore this question.
While the AFER website says that “The Case Against 8” was produced “independently from the foundation,” the film suffers from the same flaw evident in Becker’s book. AFER “gave exclusive access to directors Ben Cotner, Ryan White, and their film crew over the course of five years” to shoot the documentary, AFER said. Becker also had this access and became just one more AFER cheerleader. Cotner and White also joined the cause and produced a film that asks no tough questions and ignores what was promised by the AFER legal team — a ruling from the US Supreme Court allowing same-sex marriage in all 50 states — versus what was achieved: marriage in California.
Following a trial in federal court, Judge Vaughn Walker ruled in 2010 that Proposition 8, a voter-approved amendment to California’s constitution banning same-sex marriage, violated the federal constitutional right of same-sex couples to marry. On appeal, the Ninth Circuit limited its decision so that it would apply only in California and not in the other eight states the circuit court oversees. In 2013, the US Supreme Court declined to decide the case on the merits, holding instead that the amendment’s original sponsors — who sought to intervene in the case in the absence of the State of California defending Prop 8 — did not have standing to appeal. The result was that the voter initiative was overturned.
The documentary has a score by composer Blake Neely that is used to punctuate the film and to manipulate audience feelings, a practice that I always find offensive in documentaries.
Cotner and White have, in effect, made two films here and pressed them into a single piece.
Its title suggests the film is about the case. Much of its time is spent with Olson and David Boies, the other high profile attorney who took on the case in 2009. Other lawyers and legal players are featured as well. There are moments where witnesses or lawyers read from the trial transcript or are seen discussing the case.
Other footage looks like a love story, with lawyers and political strategists in supporting roles. We are provided with ostensibly intimate portraits of Sandy Stier and Kris Perry, who were the lesbian plaintiff couple, and Paul Katami and Jeff Zarrillo, who were the gay plaintiff couple. The documentary closes with their weddings in 2013 after the US Supreme Court ruled. Cotner and White have a scene of Perry’s two sons graduating from high school in 2013 that I assume is meant to show a loving family.
But while Perry and Stier each have two sons from prior relationships, only Perry’s sons appear in “The Case Against 8.” The absence of Stier’s two sons is not explained, though we know from Becker’s book that at least one of them was uncomfortable with the publicity blitz unfolding around the family. I found myself wondering if there was some issue here that was not disclosed because it would tarnish the image the filmmakers are crafting.
There is one conflict that was public in 2009 that is barely discussed in this documentary. The leading LGBT legal groups, who had been working on marriage for years, opposed the AFER lawsuit then, saying it was too early in the marriage fight to go into federal court and fearing it would result in a US Supreme Court decision upholding state marriage bans.
While their worst fear was not realized, those groups were otherwise vindicated. The famously liberal Ninth Circuit issued a narrow ruling and the US Supreme Court would not hear the case. This should have led the filmmakers to explore this further, but they are too busy making a film about heroic lawyers and publicists and the two loving couples that they rose to defend.
I know from Becker’s book and “The Case Against 8” that Griffin, now the head of the Human Rights Campaign (HRC), the nation’s leading gay lobby, is a skilled manipulator of the press and the public. He can produce compelling events with appealing imagery. I know he will try to squelch images and rhetoric that he feels are bad for the LGBT cause even if that means squelching authentic LGBT stories. I know that he leaves nothing to chance in these staged events.
Becker’s book was a component of the Gay Marriage: The Brand marketing campaign that was the Prop 8 lawsuit. “The Case Against 8” is just the next step in that campaign. Frankly, I was sick of this campaign about two years in. All I want to know now is when does it end?
THE CASE AGAINST 8 | Directed by Ben Cotner and Ryan White | HBO Documentaries | Jun. 23, 9 p.m. | Other air dates at hbo.com