In 2008, there were murmurs of a potential lawsuit being filed against California’s Proposition 8, a state constitutional amendment that banned same-sex marriage. Ted Olson, the lead counsel for the Republicans in the 2000 Bush v. Gore Supreme Court decision, and David Boies, his opposing counsel in that case, were rumored to be possibly teaming up against Prop 8.
“The Case Against 8” captures reaction to the unexpected coalition of Olson and Boies in the case against Proposition 8. Clip courtesy HBO
“That hook — coming together on an issue that at the time was extremely partisan was fascinating to us. We thought, on the outside chance that this becomes a big trial or a big Supreme Court case, let’s start from the beginning,” said Cotner. Unsure of what would transpire, they approached Olson, Boies and the plaintiffs. “As documentarians, you take the leap, not knowing what’s going to happen, not knowing if you’re wasting your time or not.”
“When the judge threw a curveball and said let’s do a trial and have witnesses, we were like — wow, this is actually going to be a really fascinating case to film,” Cotner said.
The filmmakers’ personal lives were often unpredictable for the next five years.
“It’s hard to live a stable life following a lawsuit because you just don’t know when things are going to happen,” said White. “Most of all, it was a roller coaster, because we were so closely following the lives of the plaintiffs who we grew to love over the five years, and their families. And we saw them go through the ringer. It wasn’t always easy, this process that they put themselves into. They had no idea what they were signing up for. They didn’t realize it was going to snowball into something this big.”
As the case started to grow, so did the stakes.
The plaintiffs introduce themselves to the media in “The Case Against 8,” a documentary film by Ryan White and Ben Cotner. Clip courtesy HBO
“This case played like a legal thriller, being in the court rooms, hearing these testimonies,” said Cotner. “We’re all on pins and needles with knots in our stomachs not knowing whether the Supreme Court would take the case in the first place, but then being there on the steps of the Supreme Court having followed this case for years.”
The Supreme Court handed out their decision to strike down Proposition 8 in Perry v. Schwarzenegger a year ago Thursday. But in this past year, life hasn’t calmed down for the plaintiffs, it’s just shifted.
Plaintiffs Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo may not be dealing with legal proceedings anymore, but they are dealing still with the aftermath, including traveling around with White and Cotner to film festival screenings.
The documentary premiered at the Sundance Film Festival in January, and the two couples, now married, were there.
“It was a hugely emotional experience. It was the first time they got to watch the film with an audience and have an interaction with people afterwards and get to hear from people what their stories meant to them,” said White. “It’s been really rewarding for (us) to watch …. I think (the plaintiffs) weren’t really aware of how much they affected people’s lives until they were able to interact with people on this scale.”
Sandy Stier and Kris Perry discuss the decision to become a plaintiff in against Proposition 8 in “The Case Against 8,” a documentary film by Ryan White and Ben Cotner. Clip courtesy HBO
Cotner and White never could have guessed how much American public perception would change over the five years of this project. Just in the last few weeks, bans on same-sex marriage have been overturned in Oregon and Indiana and Utah upheld a decision against its ban. Meanwhile, President Obama reportedly intends to ban federal contractors from discriminating on the basis of sexual orientation or gender identity.
The filmmakers admit they have a special investment in the topic: “Ben and I are both gay Californians. Ben’s worked on many films and I’ve directed a few films,” said White, “but by far this was the most personal and meaningful film that we’ve ever worked on because at the end of our film, the outcome of this case would directly affect our lives as well.”
But they say they didn’t want to make a film about whether gay marriage was right or wrong. “We decided to make a character film that was really rooted in these personalities. We realized early on that the plaintiffs were going to be the heart and soul of the film. We set out to make a character film to show their journeys so the audience could go along on that journey with them as if they were a part of it with them and their families,” said White.