In the documentary film “The Case Against 8,” filmmakers Ben Cotner and Ryan White take viewers deep behind the scenes of the legal battle to overturn California’s controversial Proposition 8 amendment, which banned same sex marriage in the state in 2008.
Cotner and White, who won the Directing Award at this year’s Sundance Film Festival, follow the two same-sex couples leading the charge as plaintiffs in the groundbreaking case, and also give an inside look at the legal team behind the fight, which the Supreme Court ruled on in June 2013.
During my interview with Cotner and White, we talked about how they were able to keep a legal-heavy issue like same-sex marriage at a level both lawyers and mainstream audiences could enjoy and why they would like to see a film about Proposition 8 from the opposite end of the spectrum.
“The Case Against 8” debuts on HBO Monday, June 23 at 8 pm CT.
Was it a challenge as documentary filmmakers to spend five years making this film and build on these relationships with your subjects and stay objective at the same time?
Ben Cotner: We really didn’t want to make a film about whether or not gay marriage was right or wrong. We wanted to make a character piece about the journey. We had never seen a case like this go to the Supreme Court, assuming that it would go to the Supreme Court when we started. We thought it would be a really interesting way to see how our judicial system works and the things people have to go through to bring up a lawsuit like this.
Why do you think these two couples (Kristin Perry & Sandra Stier and Paul Katami & Jeffrey Zarrillo) were picked to be the plaintiffs in this case? What do you think made them stand out and be chosen to represent the gay community?
Ryan White: I think it was perfect casting for our movie. There is some overlap between our film and the witness stand, so it was great they found some incredibly articulate people. All four have a way of articulating things about their past and current lives that came out on the stand and were really beautiful. We’re just grateful that Kris and Sandy and Paul and Jeff allowed us into their lives for the last five years. They are all very relatable. I know straight people relate to them in a lot of ways, too, judging from our screenings so far.
What was your pitch to them so you could follow them around for the duration of this case?
BC: Well, early on when we approached this film we were most interested in the fact that [lawyers] Ted Olson and David Boies were partnering on a case again same-sex marriage (Note: Olson and Boies had gone head to head in Gore V. Bush). We didn’t go into it thinking we were going to be following Kris and Sandy and Paul and Jeff. At the time, we thought they would just be named plaintiffs on the lawsuit. As the case went on, the judge sort of threw a curveball and decided it was going to trial. I don’t think they really thought the film was going to be as much about their personal lives as it ended up being. We were very grateful they were able to step up to the challenge presented to them in terms of testifying in the courtroom, but also to allow us to continue filming them.
How do you turn a subject as complex as this, from a legal perspective, into something viewers, who might not feel invested, can understand?
RW: Our main goal in the editing room was to balance the legal story with the human story. Ben and I are legal nerds and we had the opportunity to film two of the best in the business and all the other amazing lawyers that worked for them. A lot of that was going through different iterations in the editing room. We had a lot of different versions of our film that went into greater detail on certain legal issues that occurred during the case. But something that made sense to us wouldn’t necessarily make sense to someone else watching that footage. So, a lot of time was spent in the editing room trying to refine those legal scenes. We knew a lot of our audience was going to be lawyers because it features two of the best lawyers, so we didn’t want to dumb down the movie too much. So we tried to always strike that balance where a layman who doesn’t know about the legal system can still understand the legal intricacies, but we also wanted lawyers to enjoy watching it.
What intrigued you the most about Ted and David’s story and fit in well with the overall narrative?
BC: We have this joke where we say that Ted and David are the third romance in this story. They do have such complementary skill sets. David is one of the best trial attorneys in the country. He’s great at cross examinations. Ted is a famous orator and has spoken in front of the Supreme Court probably more than anyone. Their specialties were really a great pairing for this lawsuit. Coming together also allowed for this great partisanship around this issue of gay marriage. People can’t say this is a left or right issue anymore because Ted Olsen was up front. They were really fun to watch as this sort of third couple in all of this.
In the film, we see David Blankenhorn, the founder and president of the Institute for American Values, change his position on gay marriage during the course of this case. Do you hope this film can change the minds of more people who are against gay marriage? Is that the ultimate goal – for people to be more accepting?
RW: Yeah, I wouldn’t say it was the ultimate goal. We wanted to make a character-driven film and let the audience go on this journey. I wouldn’t go as far to say we’re trying to change hearts and minds. We want people to open up to watching a story like this. Even if audiences are on the other side of this issue, we’d like for them to see the film and make up their own minds whether or not they are happy for [the couples] on their wedding day. But, yeah, there are a lot of people changing their minds. Even the President [Barack Obama] changed his mind. A person changing their mind is a real indicator about how quickly this is issue moving and where this country is headed.
When the Supreme Court nullified Prop 8 last summer, how did your film change? Did you have to go back and start reworking things or was this more about simply documenting events and letting them play out?
RW: (Laughs) We had just started editing a few weeks before the Supreme Court’s decision. So, basically, the film had no shape. But Ben and I were prepared all along to finish this film no matter what happened with the Supreme Court. Obviously, it would’ve been a different film and a bigger call to action and a lot more devastating if [the Supreme Court had upheld Prop. 8], but we were dedicated to finishing it either way. We had made an agreement with the legal team not to finish the film until the case resolved itself. So, all our footage went into safety deposit boxes over the course of five years. When we knew the Supreme Court was hearing it, we went into hyper-drive.
What do you think a documentary film on the opposite end of the spectrum would look like –
let’s say “The Case for 8?” Did you ever think about the lawyers on the other side and how they were handling their own case?
BC: I think we both would do anything to see that film. I think it would be so interesting to see what was happening on the other side. One thing that was clear throughout the trial was that the people who were fighting for Proposition 8 really didn’t want information to get out about this case. They didn’t want the trial to be broadcast. They were really media shy about all of this. I think it would be fascinating to see that. We’d be the first ones to buy tickets to see that because we were both so curious about what their process was like.