The Case Against 8 is a new HBO documentary that provides a behind-the-scenes glimpse at the legal challenge against California’s Proposition 8 (Hollingsworth v. Perry). It shows not only what played out in the courtroom, but also the emotional journey taken by the two families who filed the suit. In doing so, it tells a story that epitomizes the rapid shift in public opinion on the question of legally recognizing the marriages of same-sex couples seen over the past decade.
This behind-the-scenes film follows a behind-the-scenes book by The New York Times’ Jo Becker, but one should not be mistaken for the other. In Forcing the Spring, Becker attempted to paint the Prop 8 case as definitively representing the entire marriage equality fight, opening her tome by claiming, “This is how a revolution begins.” This framing has been widely panned for its historical inaccuracy, especially given the fact that Perry did not ultimately produce the legal result that was hoped for. The Supreme Court essentially tossed it on a technicality of legal standing, choosing not to decide it on the merits — returning marriage equality to California, but nowhere else. It was a separate case, United States v. Windsor, which challenged the federal Defense of Marriage Act, that would pave the way for the wave of marriage equality decisions over the past year. As one New York Times review said of Becker’s book, “The Perry lawsuit made good theater — but not a revolution.” The Case Against 8 avoids that mistake by focusing entirely on the “theater.”
Without attempting to frame the case as something that it wasn’t, the film uses it to tell a poignant story about the issue of marriage equality, primarily through eyes of the plaintiffs, Kris Perry, Sandy Stier, Paul Katami, and Jeff Zarrillo. The case was incredibly high profile, and prompted very public conversations about the definition of marriage, the lives of gays and lesbians, and what’s best for children and families. Over the three and a half years of its proceedings, these four were at the center of nation’s conversations about same-sex marriage, telling the stories of their own families on behalf of all same-sex couples. The film captures their bravery as they endure harassing phone calls, cross-examination from the opponents of marriage equality, and the weight of convincing a federal judge to be the first to rule in favor of marriage equality. For example, both couples talk about the challenging conversations they had to have with their families — particularly Perry and Stier with their children — before they could even agree to be parties in the suit. And rather then follow the case to its Supreme Court ruling, it follows the plaintiffs’ stories until the moment they are finally able to marry in their home state of California.
Like Dustin Lance Black’s theatrical interpretation of court transcripts (“8”), The Case Against 8 dedicates significant time to what was actually said during the trial. Not only do the plaintiffs, lawyers, and experts read back their own words, the documentary captures the drama of preparing for those proceedings and rehearsing the testimony. In one scene, an attorney is prepping Stier for cross-examination. She asks Stier to confirm that she had analogized herself to the couples who fought for interracial marriage decades ago. After she confirms that comparison, the attorney points out that Stier had once described herself on Facebook as “a middle-aged mom with delusions of grandeur.” The interview prep falls apart as they reel from the emotional weight of the implied conclusion, realizing just how personal their experiences in court will be.
The film also shows how the legal team used the materials that Prop 8’s proponents had distributed during their campaign to demonstrate their intention to discriminate, such as documents that describe homosexuality as “gender disorientation pathology” and assert that gay people are more likely to abuse children. It also captures how experts brought by Prop 8’s proponents faltered when they were deposed and tried to back out of the case to avoid offering testimony that would undermine their opposition to marriage equality. The plaintiffs’ attorneys used their depositions anyway, and even called one of them as their own witness. David Blankenhorn, who did testify for proponents, offers his own perspective in the film about being one of those witnesses and how his experience with the case led him to reverse his own opposition to same-sex marriage.
Though barely a year has passed since the end of the Prop 8 story, The Case Against 8 still feels like history. Already, its postscript about how many states now have marriage equality is out of date. The arc it tracks is a harsh reminder of how different conversations around same-sex marriage were as recently as 2008. The very idea that a state might pass a ban on same-sex marriage feels anachronistic — North Carolina was the only other state to pass one since California, and that was back in April of 2012. Polls have consistently shown that a majority of Americans support marriage equality since 2011, and in a post-Windsor world with over 80 Perry-like suits playing out in every state that still has a ban, dominoes continue to fall with increasing momentum.
The film debuts on HBO on Monday, June 23 at 9 PM.