“The Case Against 8,” a thorough and yet thoroughly micromanaged documentary airing on HBO on Monday night, is another in a wave of inside stories about the five-year legal battle that reversed Proposition 8, a voter-approved ban on same-sex marriage in California.
In recent weeks, we’ve been told this tale of gay rights triumph in three authorized ways, first in a book called “Forcing the Spring” by New York Times reporter Jo Becker, who was granted access to the plaintiffs and their legal army — an arrangement apparently similar to that extended to the filmmakers working on “The Case Against 8.” Becker framed her narrative as the be-all and end-all of gay rights, which touched an easily touched nerve with activists who had made headway on the issue for decades.
The film, which was a hit at the Sundance festival this year, is a slightly more magnanimous telling, arriving at the same time as another book, “Redeeming the Dream,” the even-more-inside account of the case as told by its famous attorneys, Theodore Olson and David Boies. Olson and Boies are ideological opposites who are better known as the dueling counsels in Bush v. Gore, the contentious 2000 presidential election stalemate.
The two books and the film tell essentially the same story, which ends in June 2013 with the Supreme Court affirming a reversal of Prop 8 at the district court level. (The justices also issued a more dramatic decision on the same day that found the federal Defense of Marriage Act discriminatory to same-sex couples, triggering legal challenges in every state that still bans gay marriage.)
The film probably does a better job than the books of humanizing the Prop 8 case and explaining its context with well-edited momentum. In contrast to “The Loving Story,” an HBO documentary that aired in 2012 and had to rely on the barest archival footage to revisit the 1967 Supreme Court decision that did away with laws preventing interracial marriage, “The Case Against 8” provides a trove of footage and first-hand reportage that will serve future historians well, even though Prop 8 is likely to fade to a footnote. (Oddly, in this surfeit of pro-gay material, the real task for future authors and filmmakers will be to go back through history to find deeper stories of people who opposed same-sex marriage to the bitter end.)
Directed by Ben Cotner and Ryan White, “The Case Against 8” touts itself as a film about the scales of justice, but it’s really a film about public relations. Cotner and White’s diligent work delivers proximity along with some emotional and stressful moments (a la R.J. Cutler’s “The War Room”), but the more cynical side of me saw the film as a workshop in how to control a message. (Step 1: Invite a like-minded film crew along.)
As the film recounts, the case initially known as Perry v. Schwarzenegger was a carefully engineered attack on Prop 8. It was hatched, we are told, during lunch at the Beverly Hills Hotel with actor-director Rob Reiner and other like-minded lefties a few days after the November 2008 vote in which Californians helped elect President Obama (huzzah!) but also passed a gay-marriage ban (wah-wah). Out of this is eventually formed a group called the American Foundation for Equal Rights.
An activist named Chad Griffin (who is now president of the Washington-based Human Rights Campaign) gathers influential steam and, soon enough, Olson and Boies agree to work together on the case. In every account, the pairing of these former foes — and the fact that Olson is a conservative Republican working for gay rights — becomes the saucier story.
The legal limelight is never directly mentioned, but so much about “The Case Against 8” reflects the values of show business and mass marketing. There’s a strange remove throughout, a sense of intimacy that, on a second and third viewing, lacks intimacy. People talk to the camera a lot, and what they say feels as though it’s been put through a process. It’s a movie about a movie being made, and the movie being made is about finding perfectly presentable plaintiffs.
They are, in fact, just about perfect, having been thoroughly vetted: Kris Perry and Sandy Stier have been together since 1997, living in the Bay Area, raising four sons; they were married in 2004 during a brief period in which same-sex couples in California could get licenses, which were then revoked. At one point, Stier asks you to imagine the humiliation of telling everyone who came to your big wedding that it’s now void.
Meanwhile, in Los Angeles, Jeff Zarrillo and Paul Katami have been together since 1998, ready to marry but unwilling to settle for what they view as the separate-but-equal status of a domestic partnership.
As the case works its way to federal district court and then the U.S. Court of Appeals for the 9th Circuit, Boies and Olson’s team puts both couples through a barrage of rehearsals and refinement.
And it’s here where “The Case Against 8” becomes more of an instrument in this drama than an observer. Only in rare moments do we get a sense of who the plaintiffs are when they’re not busy being plaintiffs and speaking in sound bites. The film is filled with orchestrated acts of spontaneity, whether it’s cooking a family dinner or walking up courthouse steps; when victory comes, both couples are hustled to the front of the lines in their respective counties to get marriage licenses. It’s crucial that they are first; it’s a scene reminiscent of the logistical pre-concert chaos in a rockumentary.
Cinema verite collides with the observation principle; every room seems filled with people conscious of the camera (or carrying their own smartphone cameras), fixated on recording and/or making history. Conversations become speeches; people become symbols.
It’s fascinating for all the wrong reasons. If it’s not the lawyers, it’s the handlers deciding who speaks first, who says what, where to stand, when to get out of the car, what to do next, how to respond, how to dress, how to be. If it weren’t for the enduringly humble pride of the plaintiffs, the film would feel completely loveless.
But that’s also the most important message in “The Case Against 8”: You want to get something done? This is how it gets done.
(112 minutes) airs Monday at 9 p.m.
on HBO, with encores.