Samuel Blashki

the-case-against-8-smDirected by Ben Cotner and Ryan White; HBO, 2014; Distributed in Australia by Leapfrog Films — https://leapfrogfilms.com.au/movie/case-8/

The Case Against 8 documents the inspiring story of a lawsuit challenging Proposition 8, a constitutional amendment in California that had the effect of banning same-sex marriage in the state.

Spanning five years, the HBO documentary directed and produced by Ben Cotner and Ryan White follows the case from its inception to trial, through various appeals and ultimately, to a winning verdict in the US Supreme Court. It largely focuses on the four plaintiffs and their legal team, who ultimately succeed in legalising same-sex marriage in California.

The documentary provides an inside perspective into the mounting of the case. While there is not a significant focus on the legal arguments relied upon, instead the human element of the case is explored in great depth. We see glimpses into the personal lives of the plaintiffs, a gay couple and a lesbian couple, who are carefully vetted and chosen for their ‘normality’. Aside from their sexual orientation, they are seen to be ‘just like everybody else’. We come to understand the pain caused by Proposition 8, not only to the plaintiffs but also to thousands of other couples. We even learn of the infighting between civil rights groups, who each hold different views on how to approach the case.

Perhaps most interesting of all is the story of Ted Olson, a Republican conservative lawyer who represented George W. Bush in Bush v Gore. After a lifetime of championing conservative values, he decides to support gay marriage and run the case against Proposition 8 with none other than David Boies, his adversary from Bush v Gore. By joining together, they go some way to reducing the partisanship surrounding the issue. Olson justifies his involvement on the simple yet convincing premise that marriage, an institution based on a lifetime commitment, is a conservative value regardless of the sexual orientation of the couple.

What is noticeably lacking from the documentary is any real focus on the opposing side of the case. ‘Yes on 8’ advertisements and snippets of the defendants’ oral argument are shown, however the documentary places little emphasis on those who are defending Proposition 8. This is not necessarily a flaw, as the documentary succeeds in its aim of recounting one side’s achievement, rather than examining the case from all perspectives.

There is an unfortunate tendency throughout the documentary for important moments not to be caught on camera. The result is that these events are instead described by the various plaintiffs and lawyers in interviews. For example, cameras were not permitted in the courtroom during trial so instead we watch the plaintiffs and lawyers read transcripts accompanied by shots of an empty courtroom. Later, when the lawyers gather the plaintiffs together to announce that they won at trial, the camera crew is not permitted in the room and so misses this pivotal moment.

The documentary is punctuated by genuinely emotional and touching moments, such as when the plaintiffs prepare to face the media for the first time and when two plaintiffs recall the fear caused by a steady stream of threatening phone calls. Another particularly poignant moment occurs when a harsh round of practice cross-examination brings one plaintiff to tears.

Yet, at other times, the filmmakers attempt to create emotion out of relatively mundane scenes such as walking into the courtroom and around the law firm. Despite the stirring orchestral music, these moments feel somewhat melodramatic and contrived.

The Case Against 8 tells an important and inspiring story of the courts being used to pursue social justice. It tells the story from a human angle, giving insight into the hard work and determination required to win such a significant legal battle. While at times the documentary suffers from a lack of quality footage, scant discussion of the relevant law and a tendency to over-dramatise, this does not undermine the achievements of those involved in the case. Despite its shortcomings, the documentary captures an important moment in American legal history and that, in itself, makes it worthwhile viewing.

SAMUEL BLASHKI is an LLB student at Monash University.

(2015) 40(1) AltLJ 70
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