Case Study

Over the years, HBO has distributed a number of documentary films on a wide array of subjects. Their latest is The Case Against 8, a chronicle of the legal battle to overturn California's anti-gay Proposition 8. This was the case that famously paired the opposing lawyers from Bush v. Gore, Ted Olson and David Boies, and ultimately wound up at the Supreme Court in 2013 -- only to be essentially dismissed on legal grounds that brought marriage equality back to California without deciding the issue nationwide.

The film is an interesting one for the sheer scope of its access to the subjects. Everyone involved in the case knew of the potential for making history here, and so the documentary cameras were covering it from the very beginning. The story spans over four years in all, through a twisting legal labyrinth. The bulk of the film focuses on the initial district court trial -- the search for the ideal plaintiff couples, and the process of preparing them to give testimony.

The judge in that case had originally planned to allow cameras into his courtroom to film the entire proceedings, but the state defendants appealed -- all the way to the Supreme Court, in fact -- and secured an injunction to overrule him. The documentary is thus forced to recount this part of the story through the trial transcripts, using the lawyers and plaintiffs themselves in interviews, reading the words they actually spoke in the courtroom. It's not ideal, but the best that could be managed under the circumstances. And it is interesting (though not surprising) to see how little emotional distance this separation of time gives them.

The viewer easily becomes swept up in the personal stories of the people involved. Yet after this stage, moving beyond the district court trial, the documentary actually gives the rest of the process rather short shrift. After the celebration of the favorable first ruling, the rest of the legal journey is compressed into only perhaps half an hour of screen time. And that journey included an appeal hearing at the Ninth Circuit, a detour into the California state Supreme Court to argue standing, a return trip to the Ninth Circuit, and then finally the big day at the U.S. Supreme Court.

The Supreme Court showdown seems particularly truncated, probably because what happened there didn't quite comport with the heroic narrative the filmmakers were trying to paint for the lawyers and plaintiffs they were following. At the same time the Supremes were perfunctorily deciding this case on issues of standing, they made a landmark decision striking down the Defense of Marriage Act in a different case. That case, its lawyer Roberta Kaplan, and its plaintiff Edie Windsor, became the gay rights folk heroes that this lot "should" have become. That's not to diminish any of the efforts these people put forth... and yet it could be argued that this film, in its narrow focus on California, IS diminishing the efforts of the others.

Still, it's easy to forgive and forget that (if it's even true at all) when watching the final 15 minutes of the documentary, when the plaintiffs in the Prop 8 case are finally able to get married. It's moving and surprisingly tense -- a wedding tinged with the suspenseful phone split-screen vibe of your average episode of 24.

In any case, it seems likely that history will look back on this battle as an important one, even if it wasn't a decisive one. Having a documentary that covers it so thoroughly is a good thing. I give The Case Against 8 a B-.