The Case Against 8

Excellent

Best of Hot Docs (for me)

I didn't think the standing ovation was ever going to end. The audience was recognizing a fantastic movie - The Case Against 8. It's one of those movies where you know the ending but the filmmakers manage to create incredible suspense anyway.

The plot in a nutshell: California passes a law legalizing gay marriage. Then Californians vote for Proposition 8 defining marriage as being between a man and a woman. The American Foundation for Equal Rights decides to challenge Proposition 8 as unconstitutional. Two lawyers take on the case: Ted Olson (Bush's lawyer during the court case over Florida election results in 2000) and David Boies (opposing lawyer for Gore in the same case). Irony or what? And two smart, articulate, endearing couples act as the plaintiffs. A case arguing that the law is unconsitutional is won in California. The case is appealed in California and the ruling holds. The case goes to the Supreme Court, which fails to overturn the California ruling. Gay marriage is legal in California, and is now legal in 17 states.

The two couples appreciating thunderous applause after the Q&A

Plaintiffs Paul Katami and Jeff Zorillo had never been married, whereas Kris Perry and Sandy Stier had been married, only to receive a government form letter saying the marriage was no longer valid after the passing of Proposition 8. These four people had been thoroughly vetted before being chosen as the plaintiffs, and that choice was well made. Their job was to make the case about the personal impact Prop 8 had on them, and they did that with emotion (but not too much), reason (but not too abstract) and grace. The final case before the Supreme Court failed on a split decision because the plaintiffs in that case (fighting against the California rulings that gay marriage was legal) were deemed not to have a personal stake in the case. Maybe not the total victory hoped for, but at least the declaration that gay marriage was legal in California and precedent setting for the rest of the US.

In an early stage of the case, cameras were barred from the courtroom in California, to the chagrin of the plaintiffs, so we were unable to see live court scenes, but the directors hit on an effective device: have the court transcripts read by the participants to give a flavour of the court. One part of the court case I would dearly love to have seen. The opponents had lined up six witnesses to argue against gay marriage, and there were video depositions of these witnesses before the case opened. Bois was in charge of cross-examination (acknowledged in the film as perhaps the best cross examiner in the US). He tore these witnesses to shreds before the case, to the point that five of the witnesses withdrew from testifying. As for the sixth witness, well, that's the scene I would have loved to have seen. His final words after cross examination were 'I would agree that Proposition 8 is unAmerican'. Bois had turned him into a witness for the plaintiffs!

Great story. Great movie. See if it you get a chance.

Later footnote:
The Economist just published an interesting chart (aren't all their charts interesting?) showing the 19 states where same-sex marriage is now legal (up from 17 when I wrote the original post), showing when they first legalized same-sex marriage. Surprisingly, there wasn't a one-to-one correlation between states with same-sex marriage and degree of liberalism,  although the states where same-sex marriage is still illegal are definitely all conservatively inclined.