The Case Against 8 – The long road of advocacy. (Film review)


The legal system is impossibly convoluted, dry and surprisingly procedural over pacey and intelligent. It is the remarkable opposite of its pop cultural representation, where lawyers are presented as savvy think-on-your-feeters who outsmart the most brilliant opponents in court room battles that are won and lost on jurors biases, and judges moods. The true story is rarely like this. In fact it is a process of examination and analysis, ensuring there is no possibility of surprise, and ultimately learning how to cover a huge workload in a short period of time, or an overlong one. An ability to focus outweighs mental dexterity and the reality of the system rarely encroaches upon the glamorous. This depiction of the legal system, and the use the LGBT community made of that system to see a reversal on the famous Proposition 8 vote that declared, while all marriage is legal and equal, marriage itself can only be between opposite sex couples is the key to the power of The Case Against 8 as a documentary film. Ben Cotner and Ryan White manage to make the long, drawn out process fascinating without undermining the honesty that the law is a system that must be engaged with, rather than a foxy resting place career for monied white kids. The law belongs to all of us, it is our system, and it is our power. Watching common people making the law work for them pulses at the heart of the film, despite the emotional empathy for the actual cause The Case Against 8 engenders. The only secret is the process, and that is the thing Cotner and Ryan unrelentingly focus on, as it is the process that is often used to exhaust and defeat opponents who are never able to accommodate its witless and endless cost.


This all starts with the small group of people deciding to file suit against the Californian governor (Schwarzenegger at the time) to challenge the validity of Proposition 8. Once the decision has been made, every action by the group is inspired by the final decision in the courtroom that will go their way. Officially they file as the American Foundation for Equal Rights, and doggedly take on every opposition to their final aim as they move each small step forward. For example, at first they get no support from other LGBT activists groups because of the timing, but they continue on none the less. They employ a serious screening test on hundreds of gay and lesbian couples, eventually settling on the two couples who fit the criteria necessary to the success of their campaign. The legal team is headed up by David Boies and Theodore Olsen, famous enemies over the Gore v’s Bush election legal battle, who unite under a common cause and bring their own notoriety; but eventually because of the profound professionalism of the two lawyers, they also bring an additional credibility to the eventual momentum of the case. It is these small decisions, made carefully and with great calculation, in ugly offices by tired sweaty people who build the perfect pathway to their eventual win. It’s a disarming and fascinating examination, not only on advocacy in a first world country (THE first world country) but of the raw honesty behind all successful campaigns.


While we do empathise with the couples chosen to act as plaintiffs for the AFER, the gay couple Paul Katami and Jeff Zarrillo, and lesbian couple Kris Perry and Sandy Stier, it’s the cool level-headed focus of the four plaintiffs and the legal team that pack the punch rather than our emotional connection, despite its presence. The families of the couples are kept at respectful distance, never being put on show in order to water down the emotive strength, which is rightfully assumed to exist and all the more potent for its minimalism. This absence of indulgence injects a much-needed rationality into arguments as they are all systematically presented, and increases the strength of the plaintiffs case, highlighting an irrationality in their opponents. The meticulously crafted case, coupled with the careful refusal to give up, means time and distance become as important to the clarity of the argument as point made from disparate sides. This is particularly interesting, because the case for and against legalising gay marriage is rarely battled from the same starting point, and therefore alternate points of view carry little weight to the opposition. The law is used the way it was intended to be used, while right and wrong serve only as background motivators for the people who have to constantly push the case forward. The greatest fear of the opposing team is that this legislation will pass, and eventually we will feel as comfortable with same-sex marriage as we do with multiracial marriage, which is what the battle really is about in the end.

Cotner and White also keep the running time to one hundred and twelve minutes, which flies by, a great show of economy considering they must have had days worth of footage and would have undoubtedly lost a viewer’s perspective as they become enthralled with the case. It becomes a masterful example of editing and story choice as the film unfolds, as calculated and careful as the clever case it documents.

Ted Olson, David Boies