On the morning that I had set aside to watch The Case Against 8–the HBO documentary about the legal challenge to California’s Proposition 8–I received two news alerts. The first was about how an District Judge had ruled Indiana’s ban on same sex marriage unconstitutional. I’m from Indiana, so that was particularly interesting, as well as serendipitous, given the film I was watching. A few minutes later, another news alert informed me that the 10th Circuit Court of Appeals had upheld Judge Richard Shelby’s decision which similarly overturned Utah’s same sex marriage ban. The Utah decision, Kitchen v. Herbert, will likely be further appealed to the US Supreme Court, which is also where Perry v. Schwarzenegger, the case described in the film, ended up.
Although it’s a film about one of the most contentious political/social issues of our time, I actually found The Case Against 8 kind of celebratory. What it was celebrating was not, mostly, marriage equality, but the American legal system. Our legal system is, in many respects, kind of a mess, of course. But this film spent most of its 110 minutes following lawyers as they worked on the case. And, of course, the two main lawyers in the case were Theodore Olson and David Boies.
Remember Ted Olson and David Boies? They were the opposing attorneys in Bush v. Gore. Ted Olson is a conservative icon, one of the giants of the conservative movement. Boies is equally well known in liberal circles. When Chad Griffin, one of the founders for the American Foundation for Equal Rights (AFER), happened to meet with Ted Olson, other members of AFER’s board were initially skeptical. But Olson, in addition to being a brilliant attorney, is a passionate supporter of marriage equality, which he believes is an important conservative issue and ideal. He talks about it in the film, how conservatives believe families are the foundation of society, and should therefore support anyone’s right to marry.
Over the course of the film (which followed five years worth of legal battles), we can see how much Boies and Olson admire each other. Olson says that Boies is as skilled at cross-examination as any lawyer ever. Boies calls Olson’s closing argument in the initial District Court case the best he’s ever seen. Sadly, we don’t get to see them much in action–federal court proceedings are closed to the public. We do get the next best thing; Olson reading from a transcript of his closing argument.
The one exception is in the depositions we’re shown. That’s another specialty of Boies, and we do get a sense of his approach. The defendants in the case had eight expert witnesses they wanted to call, each supporting traditional marriage. We only see the experts’ faces; Boies is just a voice off-camera. He’s mild, reasonable. He’ll say “now, would you say that such and such is true?” “Yes,” says the expert, “I guess I do.” Boies: “well, if that’s the case, then wouldn’t it follow that thus and such is also true?” Expert: “Yes, I guess so.” Boies: “well, then, wouldn’t it be logical to conclude that this final thing is true?” And the experts would falter, as they realized they had just made a most damaging admission. And then, the filmmakers would tell us, that expert witness ended up deciding not to testify in court after all.
Eight expert witnesses, all of them so damaged by Boies in their depositions that they withdrew from the case, without him ever once raising his voice, or sounding anything but pleasant and calm. And so, the defendants ended up with only one expert witness, a guy named David Blankenhorn, who (the film shows us), subsequently had a complete change of heart, and now is an enthusiastic supporter of marriage equality. He says so right there in the film.
The film has other heroes, though. AFER wanted to be sure that the plaintiffs in the case would be good representatives of the marriage-seeking gay community. They selected two couples, Kris Perry and Sandy Stier, and Jeff Zarillo and Paul Katimi. They’re all terrific; just ordinary people, deeply in love, smart and articulate folks who want to spend their lives together. Perry and Stier each had children from earlier relationships, and they included the children in the decision to pursue the case. And we see the cost of it. We hear some of the threatening phone calls they received, and we see the protesters in front of the various courtrooms in which they appear. Perry is a little older than Stier, and she comes across a bit more poised, perhaps, while Stier seems a bit more emotional. Zarillo talks about how nervous he was before testifying, and how his leg wouldn’t stop shaking, until Katimi leaned over and patted him on the knee, calmed him down. You like all four of them. They’re easy to root for.
The film, of course, doesn’t even pretend to be objective. I mean, the title of it is The Case Against Eight; a dispassionate analysis of the issues relating to marriage equality is clearly not in the cards. LDS viewers worried about a Church-bashing film needn’t worry, though–Mormonism is only mentioned, very briefly, once, in passing.
But it’s really a film about the genius of the constitution, about the checks and balances that moderate pure democracy. We see democracy–the voice of the people– in action in this film, and it’s not a pleasant sight. Outside each court venue, protesters gather, on either side of the issue, and frankly, they’re mostly a sorry lot, passionately unreasonable. The secret to getting noticed by television cameras is to make a memorable poster or sign, but ‘memorable’ in this case does not suggest a commitment to reasoned discourse. The fact is, Proposition 8 was an exercise in democracy–it was a state-wide referendum. This film is about a legal challenge to that referendum’s constitutionality. And it presents legal battles compellingly. Olson and Boies and the teams of lawyers who work with them all seem attractive in the same way that intelligent people who are good at their jobs are always attractive. I’m glad we live in a democratic republic, even when it seems dysfunctional, as ours sometimes does today. But what’s on display in this film is the constitution in action, courts overturning pure majority rule, thus defending the rights of unpopular minorities.
Given the events of today, I should add one final note. The ‘pro-traditional-marriage side’ of this debate really needs some better arguments. I don’t mean to be snarky here, but that side of the question is on a major losing streak nowadays, and it seems likely to continue. In the Utah case, for example, one argument that was presented is that the word ‘marriage’ has always been defined as being between one man and one woman, so the term ‘same sex marriage’ is fundamentally oxymoronic. Today’s 10th Circuit decision (found here) eviscerated that argument:
Appellants’ assertion that plaintiffs are excluded from the institution of marriage by definition is wholly circular. Nothing logically or physically precludes same-sex couples from marrying, as is amply demonstrated by the fact that many states now permit such marriages. Appellants’ reliance on the modifier “definitional” does not serve a meaningful function in this context. To claim that marriage, by definition, excludes certain couples is simply to insist that those couples may not marry because they have historically been denied the right to do so. One might just as easily have argued that interracial couples are by definition excluded from the institution of marriage.
To advocates of same-sex marriage, gays and lesbians are seeking normalcy. Gays and lesbians say they want the legal right to express their loving relationships through government recognition of their unions. To advocates of man-woman unions, marriage cannot be casually redefined. Male-female relationships are the foundation for sexual reproduction, and supporters say that marriage between a man and a woman provides for the optimal rearing of children, who constitute society’s future generations.