Ben Cotner and Ryan White’s documentary, produced for HBO, immediately sets its priorities and its outlook. As the title forcefully suggests, the movie is a polemic against Proposition 8, the California state initiative to repeal legal same sex marriages, and which won in a 2008 referendum. That was the same election, the film notes, that brought Barack Obama to the highest office in the land. As journalism, the movie’s steadfast position in opposition to the particulars of the proposition would seem to make it less than objective, but Cotner and White gave themselves the luxury of covering the lawsuit that eventually annulled the election results, and which took five years. In that regard, the film is an invaluable investigation into how the American consensus on same sex marriages changed over time.
The undeniable hook of the story is the odd couple status of the legal team put together by the American Foundation for Equal Rights, which rallied right after the Prop 8 win was announced to find a way of having it declared unconstitutional. Since the AFER is basically run by the California state elite (filmmaker Rob Reiner is a founding member), its politics are an interesting mix of social libertarianism and fiscal conservatism. To them, bringing together Theodore Olson, the lawyer who represented George Bush in the fight to preserve the contentious results of the Florida ballot in the 2000 presidential election, and David Boies, the man who represented Al Gore in the same fight, is simply good tactics, since both are passionate defenders of the constitution. To the respective members of the right and the left, however, it was baffling and wrong-headed, since such people tend to adhere to idealistic notions associated with their political stances. But lawyers are hired to make the case for their client, regardless of their personal beliefs, and as it turned out, even though Olson and Boies were adversaries in the 2000 case—which many people on the left think was rigged to make Bush president—they also mutually admired each other’s skills as attorneys. And just because Olson took Bush’s brief to the Supreme Court doesn’t necessarily mean he’s against the idea of homosexuals being able to marry. To him “family values” doesn’t preclude such matches.
Once you understand the scheme of things in this light, the legal wrangling and positioning becomes comprehensible and even more interesting. AFER knows they need to attach human faces to the case, so they handpick two same-sex couples, a pair of lesbians from northern California and two gay men from Socal, as proxies for the fight. This quartet is forthrightly middle class, ably employed, and totally devoted to their chosen partners. Much of the documentary is given over to promoting the couples as stable and responsible, but mostly loving. This involves opening their private lives and those of their families–who all unconditionally support them–to public scrutiny. The idea is not only to advocate for their constitutional right to marry whom they want, but to point out that marriage, at least in America, is a declaration of love. In other words, while Olson and Boies argue the legal points, AFER, in the public realm, makes the sentimental ones.
Consequently, some critics have found the movie less than satisfying for this focus on what one called “schmaltz,” but mawkish attention to the average person’s appreciation of a happy ending was exactly what the AFER wanted, and it worked very well, probably because the association’s brain trust is headquartered in Hollywood. (Interesting note: the name of the case was Perry vs. Schwarzenegger, Perry being the name of the oldest proxy plaintiff and Schwarzenegger, of course, being The Arnold, the Repubican governor at the time, though, ironically, he has since become a strong advocate of same sex marriage and even at the time was quietly rooting for the case to succeed) In a sense, it complemented the legal side of the case almost too well. Olson and Boies, buoyed by testimony by the four principals, easily won in district court, but, of course, the state kept appealing, which drew the case out for five years, during which AFER, with all its money, could ramp up the PR campaign, trotting out its two couples every chance it got, and while there was the usual bunch of religious fanatics who showed up to throw insults at gay people, for the most part the public loved this display of happy white people in love. In the end, the U.S. Supreme Court, shrugging its collective shoulders, refused to hear the case, thus effectively repealing Prop 8. The rest, as they say, is history.
Opens today in Tokyo at Cinemart Shinjuku (03-5369-2831).
The Case Against 8 home page in Japanese.