The Case Against 8
June 4th, 2015

Courtesy of HBO Documentaries:

The riveting documentary THE CASE AGAINST 8 takes an in-depth look at the historic federal lawsuit filed in an effort to overturn Prop 8, California’s discriminatory ban on same-sex marriage. Shooting over five years, with exclusive behind-the-scenes footage of the powerhouse legal team of David Boies and Ted Olson and the four plaintiffs in the suit, directors and producers Ben Cotner and Ryan White (“Good Ol’ Freda,” “Pelada”) have created a powerful emotional account of the journey that took the fight for marriage equality all the way to the U.S. Supreme Court.

A crowd-pleaser on the festival circuit, THE CASE AGAINST 8 won the 2014 Sundance Film Festival Directing Award in the U.S. Documentary category and the SXSW Audience Award in the Festival Favorites category.

“Ben and I grew up as LGBT youth admiring those who led our movement, especially the leaders of the marriage equality cause who devoted their lives to this issue,” notes filmmaker Ryan White. “Those individuals paved the way for this case and for this moment, which we were able to capture on film.”

In May 2008, the California Supreme Court legalized marriage for same-sex couples in the state. Some 18,000 couples were married in the next few months, but the backlash was swift. Six months later, a coalition of conservative forces placed a proposition on the November statewide ballot that defined marriage as exclusively between a man and a woman. After a fiercely contested campaign that drew national attention, the controversial initiative known as Prop 8 passed with 52% of the vote, resulting in an amendment to the state constitution banning marriage for same-sex couples.

Stunned by the passage of Prop 8, activist Chad Griffin and his colleagues decided they needed to act immediately and formed the American Foundation for Equal Rights. A chance meeting pointed Griffin to an unexpected ally: Ted Olson, lead counsel for the Republicans in the critical 2000 Bush v. Gore Supreme Court decision and solicitor general under President George W. Bush, was interested in taking on the case. In contrast to many of his conservative colleagues, Olson believed in the right to marry for all loving couples.

THE CASE AGAINST 8 follows lawyers and plaintiffs from confidential war-room strategy sessions to last-minute trial preparation. From the Federal District Court in San Francisco to the 9th Circuit Court of Appeals and finally to the Supreme Court, Olson, Boies and their associates masterfully build a case with testimony from an army of experts, finally effecting a stunning last-minute reversal that Olson calls the “Perry Mason moment”: an admission from an opposition witness that changes the course of the trial.

Paul and Jeff were among the first same-sex couples to be married in California in 2013. Paul explains, “The right to get married is, to me, a civil right…so by accepting a domestic partnership, we’d also accept being second-class citizens. And that was unacceptable to us.”

Ted Olson proudly calls the Prop 8 suit “the most important case I have ever worked on.” Today, the fight continues: As of May 23, 2014, 19 states and the District of Columbia have legalized marriage for same-sex couples, while 31 states explicitly ban it. Lawsuits challenging the bans are in progress across the country and marriage equality has become one of the most visible and important civil rights issues debated today.

Director and producer Ben Cotner has served as an executive for ten years at Paramount Pictures and Open Road Films, where he most recently oversaw acquisitions and production. He has worked on such films as “An Inconvenient Truth,” “American Teen,” “Mad Hot Ballroom,” “A Haunted House,” “Side Effects,” “The Grey” and “End of Watch.”

Director and producer Ryan White is also the director and producer of “Good Ol’ Freda,” which tells the story of Freda Kelly, the Beatles’ longtime secretary, and “Pelada,” a journey around the world through the lens of pickup soccer. White’s other credits include “Capitol Crimes” and “9/11: For the Record” on PBS; “Dead Wrong: Inside an Intelligence Meltdown” on CNN; and “Country Boys” on PBS’ “Frontline.”

THE CASE AGAINST 8 is directed and produced by Ben Cotner and Ryan White; editor, Kate Amend, A.C.E.; music by Blake Neely; associate editor, Helen Kearns; co-producers, Rebekah Fergusson and Jessica Lawson; associate producer, Carin Bortz. For HBO: supervising producer, Sara Bernstein; executive producer, Sheila Nevins.

Tidbits:

• Sundance Film Festival – 2014 – Winner: Documentary (Directing Award)
• SXSW Film Festival – 2014 – Winner: Festival Favorites (Audience Award)

Courtesy of HBO Documentaries:

HBO
You seem to have had incredible access. How were you able to tell this story from the inside?

BEN COTNER
We initially found out that the lawsuit was going to be filed around May 2009. We approached the American Foundation for Equal Rights, who gave us permission to meet with Ted Olsen and David Boies, as well as the plaintiffs involved in the case. We said to them, “On the outside chance that this becomes something really important, can we film this for archival purposes and maybe someday make a documentary out of it?” They were gracious enough to let us film behind the scenes, and as the case snowballed we were right there alongside them. We had already been embedded with them for four years by the time we got to the Supreme Court.

HBO
At what point did you realize the magnitude of the story you were telling?

RYAN WHITE
We worked on the movie for three years without even knowing if it would become a finished film. If the case didn’t end up before the Supreme Court, I don’t know if someone like HBO would have come on board, and the film definitely wouldn’t have had the epic third act that it does now. In December 2012, when the Supreme Court said it would hear the case, that’s when we went into hyperdrive.

HBO
The lawyers really seemed to open their doors to you.

BEN COTNER
We spent a lot of time getting to know these people and trying to blend into the background. We wanted to be as unobtrusive as possible to their process. We’d slip in and out of rooms, sometimes in the middle of meetings. People got so used to us being there that eventually we were just allowed to be part of that process.

HBO
Was it the same way with the plaintiffs?

RYAN WHITE
The plaintiffs were a little bit different. With the lawyers we were just asking to film their work lives, but with them it was their personal lives. It was definitely a process of making them feel comfortable with the fact that we would be following them. By year five we were doing a lot more following than in year one. They didn’t sign up to be celebrities or stars of a documentary, so we were incredibly grateful with the access they and their families gave us. That’s the heart of our narrative.

HBO
How were Kris, Sandy, Jeff and Paul selected as the plaintiffs?

BEN COTNER
The American Foundation for Equal Rights spent a lot of time trying to find couples that were appropriate. Because same-sex marriage had been legal in California for several months in 2008, most of the people who were ready to get married at that point in their lives had already done so. So it was a bit of a challenge to find two couples who were not married but were looking to be. They met with a lot of people and wanted to find some who would also be good spokespeople in the press, and would do well on the stand. We’re incredibly glad they picked Kris and Sandy and Jeff and Paul, since hearing them speak on the witness stand was one of the most moving days of our lives.

HBO
Were you surprised by the difference between the prep and the witness testimony?

RYAN WHITE
We show some of the plaintiff prep in the film for maybe five to 10 minutes, but that process went on for many grueling days. Each plaintiff had to go through it individually, having every moment of their life scrutinized under a microscope. You can imagine how uncomfortable that would be. But then it was powerful to watch that preparation translate to the witness stand. The moment in the film with Kris Perry reading her testimony — that wasn’t what they had prepared for. All those personal genuine feelings came out organically on the stand. Nothing we saw in the conference rooms matched that power.

HBO
And you were in the courtroom with them.

BEN COTNER
We were there, but we weren’t able to film it. Early on, District Chief Judge Walker had decided he wanted this case to be part of a trial program for broadcasting trials that had an effect on the wider public. That decision was made, and the proponents of Prop 8 appealed that decision all the way to the Supreme Court. On the first day of trial, the court issued a ruling that blocked the broadcast of the trial. The only way to experience it was to be in the courtroom, which is part of what made it so important to us to convey to people through this film what was happening in there.

HBO
Was it a challenge to make conference calls and legal rulings into something that was filmable?

RYAN WHITE
Filming the legal process definitely isn’t the most cinematic thing you can pick. We shot 600 hours of footage, and many of those hours are probably really boring stretches when we’re just rolling a camera in a conference room, since we didn’t know when an important phone call was going to come in or when a ruling might come down. On the flip side, by keeping the cameras on we were able to capture a lot of the exciting parts of the legal process, especially in a case like this with so many twists and turns. That was something we worked on in the editing room, to keep the legal process exciting for an audience of lawyers, but also for a general audience that’s not intimately familiar with the law.

BEN COTNER
No one expected this case to go on for this long and to have this many ups and downs. It really did become a legal thriller. We wanted to capture that feeling that everyone was on pins and needles for years not knowing what would happen.

HBO
You mention the legal thriller aspect of the film. What type of movie did you feel like you were making?

BEN COTNER
The legal thriller aspect is definitely what drew us to the case to begin with, but as we went on we realized that it’s a love story, and a very joyous one. These guys are also really funny — we were lucky that it had a lot of comedic elements, a lot of romantic elements, and all on that legal thriller background. We loved playing with and mixing those genres.

HBO
What was the message you were trying to impart with the film’s ending?

RYAN WHITE
Obviously, the end of the film was very celebratory. You’ve gone on this journey with these two couples and their families, and you watch them achieve what they worked so hard to do for five years. But the film’s very last card explains what the situation is in the rest of the country. We see the end as quite bittersweet. In some ways, we’re hoping that people who live in the 31 states where same-sex marriage is still illegal can watch what happened with Proposition 8 and what those two couples did, and find inspiration. We’re seeing that all over now, and in every one of those states there are lawsuits pending.

HBO
How does it feel to put this film in front of a national audience?

RYAN WHITE
It’s the most exciting thing ever. It’s been really great to do the festival circuit the last six months, and we’ve been able to take the film to lots of places in the trenches in the fight for marriage equality. But to now to take it to this level, we’re incredibly humbled that so many people are going to see this film. We hope that it reaches all types of people — obviously we would love an LGBT audience –but we’re hoping straight people, religious people, people from all over the country with all types of backgrounds will watch the story of these four people.

HBO
The supporters of Proposition 8 have some extremely smart and capable lawyers, and yet, in the film, every one of their arguments falls flat.

BEN COTNER
They had very credible lawyers, and they put out as much evidence as they could. But we saw several of their expert witnesses drop out of the case. When they did depositions, their facts just weren’t passing muster. You saw people like David Blankenhorn, who was a principal witness for the other side, come out after the case and say that he has changed his mind on the issue. When you strip away the political slogans and the religious arguments, there really is no rational reason for discrimination like this.

HBO
How would you like people to come back and look at this film?

RYAN WHITE
The marriage equality movement didn’t begin with Proposition 8. It began decades before that with people who dedicated their lives to the cause. There were a lot of stories before Prop 8, and there will be a lot after. We hope that we told one chapter of this story and that we told it well and in a way that moves people.

Here is a curated selection of links shared on our Facebook page for additional insight/information:

• 5/9/15 – LA Times‘s Kenneth Turan says The Case Against 8 is “emotional and analytical by turn…a thoroughly engaging documentary that draws back the curtain on one aspect of perhaps the most contentious legal battle of recent years, the fight for marriage equality that went all the way to the U.S. Supreme Court.” – link
• 5/13/15 – It was announced today that directors Ben Cotner and Ryan White and producer Jessica Lawson were awarded the 2015 Silver Gavel Award by the American Bar Association for their film The Case Against 8 for its “outstanding efforts to foster the American public’s understanding of law and legal institutions”! – link
• 5/18/15 – In the Village Voice, Alan Scherstuhl calls The Case Against 8 “the best kind of popular history, a film that trembles with tears and hope…” – link
• 5/26/15 – At the New York Times, Tom Roston outlines the long road for The Case Against 8, which screens at North Park Theatre next week thanks to our generous sponsors Community Beer Works and Public espresso + coffee! – link
• 5/27/15 – Prep for our screening of The Case Against 8 next Thursday at North Park Theatre with an Interactive Timeline of the Fight for Gay Rights by TIME! – link
• 5/21/17 – Did you know Ryan White (the director behind The Case Against 8 – the first film we ever screened) has a new seven part crime documentary on Netflix called The Keepers?
• “Netflix’s new true-crime doc, The Keepers, isn’t Making a Murderer. It’s far more haunting.” Alex Abad-Santos, Vox – link