December 6, 2014 -- This documentary film gives a good overview of the court battles in California, culminating in the United States Supreme Court decision in 2013 to overturn California's constitutional ban against same sex marriage, known as Proposition Eight. The film personalizes the case by presenting a portrait of the two couples who brought the suit, their families and the lawyers to represented them.

Proposition Eight (ballot title: Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment) passed by a small margin on November 4, 2008. Earlier, Proposition 22, passed in 2000, by a larger margin, also banned same-sex marriage under state law, but it was ruled unconstitutional. Proposition Eight got around that ruling by amending the state's constitution.

Prop Eight opponents fought it all the way from the time it was announced through the election and beyond. Over $80 million was spent on the election to sway voters one way or the other. There is another movie connection here, too. According to the documentary, well-known movie director and actor Rob Reiner got the ball rolling on the federal appeal of the new constitutional amendment during a conversation with friends during a meal at the Beverly Hills Polo Lounge. Reiner then founded the American Foundation for Equal Rights with political strategist Chad Griffin.

The foundation hired high-powered lawyers to take the case, Ted Olson and David Boies, a very odd couple. Olson and Boies had opposed each other in another famous U.S. Supreme Court case, Bush V. Gore. Olson, a hard core conservative, defended George Bush in the Florida recount case, successfully stopping the recount, while Boies represented Al Gore, and lost. However, the two men liked and respected each other and wanted to work on a case together, and it turned out they did work well together. Olson's strength is opening and closing statements, while Boies is a master at cross examination.

Opponents of Proposition Eight could not believe that the conservative Ted Olson was on their side. A number of conspiracy theories were hatched that Olson was going to sabotage the case somehow, but like most conspiracy theories, it was all nonsense. Olson really opposed Proposition Eight he felt its sole purpose was to take away people's rights (as clearly stated in the ballot title). In the documentary, Olson is asked why conservatives believed he was a traitor to their cause, Olson said, that was because he hadn't had a chance to discuss it with them. He could be serious. Olson is extremely persuasive.

The first thing the legal team did was to find defendants who wanted to get married, but were denied that right by the new amendment to the state constitution. There were plenty of candidates, so they could be very selective, and they were. The defendants chosen were two couples, Jeffrey J. Zarrillo and Paul T. Katami Paul T. Katami, along with Kristin M. Perry and Sandra B. Stier. During the course of the documentary, we learn a lot about the defendants, and their lawyers. This puts a human face on the case.

On the other side of the case, the defenders of Proposition Eight also needed to find people who had standing in the case, that is, people whose rights would be infringed, or who would be harmed in some way if Proposition Eight were overturned in court. According to the documentary, the defenders of the ban on gay marriage could not produce anyone who had standing in the case. Most of their expert witnesses, who had argued that gay marriage would harm society as a whole, also dropped out of the case following cross examinations in depositions, which revealed to them the flaws in their testimony. The one that remained, David Blankenhorn, founder and president of the Institute for American Values, did not help the defense on the stand when the unsustainable contradictions in his views were exposed. Blankenhorn, in fact, changed his mind about gay marriage and later came to support the idea.

Unfortunately, cameras were not allowed in the courtroom of any of these cases. In the film, the court proceedings are represented by footage of practice court sessions and participants reading their testimony from court transcripts on camera. After victories in the lower federal courts, the U.S. Supreme Court dismissed the final appeal against the lower court rulings on June 26, 2013, and gay marriages resumed in California soon afterward. The defendants are shown being married in civil ceremonies in the documentary.

This film doesn't detail the progress of the cases in California courts. In Strauss v. Horton, the California Supreme Court upheld Proposition Eight on May 26, 2009. That decision became a factor in four U.S. Supreme Court justices voting in opposition of the Proposition Eight ruling in 2013, arguing that the state supreme court ruling should have been respected. The film also frames the 2013 U.S. Supreme Court ruling as overturning Proposition Eight.

That ruling, however, was not a decision based on the merits of the arguments for and against Proposition Eight, it was a decision based only on the lack of legal standing by those defending Proposition Eight. It was also a 5-4 decision, like so many in the court's recent history. So “The Case Against 8” may not be the final case. The issue may once again come before the U.S. Supreme Court some day. Given the degree the current court is swayed by politics, a ruling against same sex marriage in the future is possible.

While the film doesn't get very deep into these various court cases, it does a good job of humanizing the lawyers and the four defendants in the case. We get to know the four defendants and their families, and how they change over the five-year period the legal cases wound their way through the courts. This personal perspective gives a much more profound dimension to this issue than just a legal, political or social science debate. It is about real people, families and consequences. This film rates a B.

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Copyright © 2014 Robert Roten. All rights reserved.
Reproduced with the permission of the copyright holder.

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