Monday’s Must-Watch: Marriage Equality Triumphs In HBO’s “The Case Against 8” Documentary

Ben Cotner, screenwriter/activist Dustin Lance Black and Ryan White at LA premiere. (Getty)

While we’re getting more and more used to hearing about our LGBT friends getting married, it was a long road to get here and, of course, that road still has many miles to go.

But in California, which is what the documentary, “The Case Against 8,” focuses on, a legal battle is documented that would eventually strike down Proposition 8 and allow same sex couples to marry in the State.

The film, also playing in theaters, spends time with the two couples who became the plaintiffs in the case – Jeff Zarrillo & Paul Katami and Kris Perry & Sandy Stier – as well as the attorneys Ted Olson and David Boies who strategized and fought to make equality a reality.

Filmmakers Ben Cotner and Ryan White were given access from behind closed doors with the case and they sat down recently in Los Angeles with me to talk about gathering the footage and then putting it together for this informative and compelling film.

Let’s start at the beginning of your process with the film when you said, ‘Okay, let’s start documenting all this?’

Ben Cotner: Ryan and I both live in Los Angeles, so as gay people in Los Angeles, we were both here when Proposition 8 passed and we were both surprised, as many people were, that it passed in California. So we were definitely following the process. And then when we found out in 2009 that a lawsuit was going to be filed, we were intrigued by the idea. And so we thought it would be a good idea to start recording whatever was happening on the outside chance that it became something.

And then when Ted Olson and David Boies got involved, it was sort of like, 'Wow, this is a really interesting pairing of a conservative and a liberal to sort of take the partisanship out of the issue and they're both famous, so we'll get headlines. This could be a really interesting hook for a movie.' So we approached them about the idea of filming and they were open to the idea of recording it just sort of as an archive of what was happening at the time.

So the plaintiffs got on board as well and we got to know them and they were open to us in a similar way. Although, they were a little bit reluctant to have strangers come in and film their lives. They're private people. They have children that they want to protect. At the time, they didn't even know there would be a trial. They weren't going into this thinking they would be put in the spotlight. But they all got to know us and became more comfortable with the idea of us filming it. And we really found, by that point, that it was their journey that we were filming and so we spent a lot of time getting to know them. And you know we joke that it's sort of like these three great love stories of Paul and Jeff and Kris and Sandy and Ted Olson and David Boies.

Plaintiff Kris Perry with son. (HBO)

And I thought the film would be more focused on the plaintiffs but we really got to know Ted and David, too.

Ryan White: Obviously, the original hook that’s been said to us was ‘The Odd Couple.’ That was the hook for the press, that’s what garnered all of the press attention and for us as well, you know, the leading conservative litigator, the leading liberal litigator, one had the head on Bush v. Gore, now joining forces for gay marriage. And that’s the hook at the beginning of our film too, but I think for us, they’re very different characters in the film. And in a lot of ways that manifests in what their expertises are legally.

And so I think they both fulfill different roles where Ted Olson is the eloquent orator. He's an appellate lawyer. He gets up in front of appellate courts and the Supreme Court and argues cases. And I think that's the role that he serves in the film a lot. You know, one of the main scenes in our film is his closing arguments from the trial. Obviously we include his arguments in front of the Supreme Court which are pretty stirring and masterful.

And David Boies is a trial attorney. So he's a different type of lawyer and he's more nitty-gritty and in the trenches. I think, in our film, his major role, his major scene is the cross-examination of David Blankenhorn. And I think that's one of my favorite scenes in the film and one of the most revelatory moments in the courtroom because David's an interesting personality. And we filmed a lot with both of them, but I think we gleaned a lot more from Ted Olson's personality. You know, just being in the room with him and stuff.

And we could spend hours in the room with David just filming him and he wouldn't even notice. He has a level of concentration that's amazing. And so we had never seen him go into a courtroom and then everything clicks and you see why he is such a genius.

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How did just being so close to everything happening change your opinions of either the court system or just the issue? Did it change how you saw both things?

Ben: Absolutely. I think growing up, I grew up in Indiana and Ryan grew up in Georgia, neither of us really ever even thought of the idea that we would someday get married. And I think that sitting in the courtroom and listening to the testimony about why marriage is so important and having that option is so important to the identity and to the respect that LGBT people feel, that when government actually says that you’re “less than,” it actually does affect you in the way that you live your life. And Kris says so eloquently in the film about living with a sense of pride and that this issue is so important. But we certainly didn’t come at it as marriage activists. We weren’t particularly passionate about the institution necessarily.

Did it change your opinion about marriage, just seeing the couples, spending time with them?

Ben: I think that when we started this, I didn’t have any specific idea of whether I wanted to get married or not. But I definitely, hearing all the stories that we heard and meeting all the people that we met, see the value in it. And I think that it’s good for some people and it’s not good for some people. And it’s great to be able to make that decision for each and every individual’s life, but I think for me, personally, it has made me believe in the value of the institution, that’s maybe something that I would like to enjoy someday.

Ryan: I don’t understand why Ben won’t get married. It would be a great press stunt for our film because he has a long-time boyfriend. But I’m not in a relationship so it’s very different for me. But I definitely think, having made the film…I think the point is that whether you want it or not, whether you want to take advantage of that institution or not, because there’s a lot of straight people who don’t as well…I remember that woman at Hot Box who was a militant feminist. She was a lesbian feminist, actually. She could’ve been married for ten years in Canada. She said, “I never wanted to get married, but right after the film, I called my girlfriend and I was like, ‘Let’s f**king get married.’”

Plaintiffs Jeff Zarrillo (l) and Paul Katami (HBO)

How much do you think the Hollywood community had an influence?

Ben: I think that there isn’t a political or activist campaign in the country that doesn’t make a stop in Los Angeles for fundraising. I think it’s a natural place for that and the community does feel passionate about certain issues, on both sides really, of conservative and liberal causes. So I think there were a lot of Hollywood people that were involved in the starting of this and they brought in a lot of non-Hollywood people as well…they were all very active in raising money on this that weren’t necessarily Hollywood people, but I think that did definitely help raise the profile and raise the amount of money and press that could be brought to it that allowed the lawsuit to happen.

What is you guys’ hope with the film outside of being just a document of everything that happened with the case?

Ryan: I don’t think it’s the film that we hope changed people’s minds. But we hope Kris and Sandy and Paul and Jeff’s stories can change minds and we’ve watched it happen for the last five years. And we’ve especially watched it happen since we’ve been able to start releasing our baby into the world through the festival circuit.

And so, like I said before, it wasn't a movie to us about whether gay marriage is right or wrong, but it was a story about what these four people had to go through to reach their fairytale ending. And you know, we've been hard-pressed to find anyone in an audience yet, and that includes a lot of conservatives and that includes a lot of people who are on the other side, who aren't happy at least, for Kris and Sandy and Paul and Jeff at the end of the movie, who aren't at least smiling and you get to watch this all pay off for them.

So I think our goal is mainly for people to experience their stories side-by-side with them as if they were there the entire time and have conversations about it afterwards. A big goal of ours is to get this into the 31, 32, 33, whatever are considered the number right now of states where marriage is still illegal, hopefully inspire LGBT people there to believe that they can also challenge their version of Proposition 8 and win, but also to get people on the other side of the fence to rethink, perhaps, their stance on the film through the 4 of their stories.

Ben: And I think in a very personal way, that people who are gay or lesbian who see the film and relate to it…we’ve had many come up to us and say, ‘I want to show this to my family members who aren’t supportive.’ And I think in that way it can actually be helpful to people in a very personal and direct way, rather than, you know, I mean those people probably wouldn’t go see the movie voluntarily, but if someone asks them to watch it, I think that’d be great. If every gay and lesbian person who watches it could give a copy of the movie to everyone who might need persuading, I think maybe it can make a difference.

“The Case Against 8” airs tonight on HBO at 9pm. For additional airings, check the HBO website. For more on the film, visit the website.

The opinions expressed are solely those of the author and do not necessarily reflect the views of Comcast.

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The opinions expressed are solely those of the author and do not necessarily reflect the views of Comcast.

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