The documentary “The Case Against 8” focuses on the historic federal lawsuit which was filed to overturn Prop 8, California’s discriminatory ban on gay marriage. Its directors, Ben Cotner and Ryan White, spent five years filming the plight of two couples (Kris Perry and Sandy Stier, Paul Katami and Jeff Zarrillo) who were plaintiffs in this case as well as Ted Olson and David Boies, the lawyers in “Bush v. Gore,” who represented them. The documentary made its debut on HBO back in 2014, and it gave us an in depth look at what went on behind the scenes with these people as they fought for marriage equality.
I got to speak with Cotner and White in 2014 when they were in Los Angeles, California for “The Case Against 8” press day. Cotner has served as an executive at Paramount Pictures and Open Road Films, and he has worked on the films “An Inconvenient Truth,” “American Teen” and “Side Effects.” White produced and directed of “Good Ol’ Freda” which is about Freda Kelly, The Beatles’ longtime secretary, and “Pelada” which follows two soccer players as they travel around the world. They were both very open about the challenges and surprises they encountered while making this documentary.
Ben Kenber: The lawsuit was supposed to last only a year or so, but it ended up going on for five years. You couldn’t have known how everything would turn out, but did you have a clear idea of how you wanted this documentary to play out?
Ryan White: No. We began filming in 2009 right after the case was filed, but more just to cover our bases in case it became something big. We were lucky to get Ted (Olson) and David (Boies) on board, and they recognized also that if it snowballed into something bigger, it might be important to have a video record of it. But we filmed for three or four years without even knowing whether we had a film, or at least whether we had a third act or not. It was when the Supreme Court granted cert in December 2012, that was when we really sort of launched into hyper drive and realized that we have to finish our film. We had six months to edit it, but also that we would have a really great ending no matter which way it went.
BK: And you did end up with a great ending.
RW: Well we were very lucky in a Hollywood fairytale type of way (laughs).
BK: What surprised you most about making this documentary?
Ben Cotner: I think one of the things I was most surprised about was how open the plaintiffs and the lawyers were with us in sharing their lives. When we first went in there we had never met them, so it was really important for us to spend a lot of time gaining trust with them and for them to be comfortable with cameras around. Ryan and I intentionally didn’t have big camera crews. We shot everything ourselves so I was surprised that we were able to slip in and out of rooms for these incredibly confidential meetings and they let us do that. That was really, truly, as a documentary filmmaker, such a gift and such an exciting opportunity for us because we would get to see things that were happening that other people involved in the case weren’t able to see.
RW: I mean it’s a surprise where we are now in the country with the climate on marriage equality and what’s happening with states right now. When Prop 8 passed I think only two states had legalized gay marriage at the time in California was the third so it was relatively normal that things like Prop 8 could pass, and now it’s pretty abnormal. Even in the reddest of red states we are seeing federal judges saying that the constitutional bans/the state bans are unconstitutional, so I would’ve never expected in 2008 when we began this film that we would be at this point which feels like a tipping point.
BK: There is some attention paid to the defendants. Did you ever get any pressure to put a little more focus on them as well, or did you feel that they got enough focus?
BC: The title of our film is “The Case Against 8” because we really wanted to tell a character piece, a journey of these people to overturn this law that was affecting them. I think in doing so we spent so much time behind the scenes with these people that it would’ve been deceptive of us to pretend to be giving fair attention to the other side. At the same time, we wanted to be very respectful and not villainize them. So it really wasn’t that we were setting out to make them look bad. I think we wanted to present the best of their arguments that we could see as they were presented in court and be very true to what they said, which I think at the end of the day we were. Their lead witness, David Blankenhorn, we approached when he changed his mind about same-sex marriage very publicly. He agreed to an interview which we thought was really interesting, so we could actually see some of the perspective of somebody who was, at the time, on that side during the trial. It wasn’t that he was a hateful person. He would say there was some animus in their belief that gays and lesbians shouldn’t have the right to marry, but it wasn’t because he was trying to be mean to anybody. He was essentially a nice guy. As he said, he just hadn’t gotten to know people. So for us it was important to be as fair as possible to them but not pretend that we were going to make a film about whether gay marriage was right or wrong and be fair to both sides. It really wasn’t about that for us. It was telling these characters’ stories.
BK: You had 600 hours of footage when you finished making this documentary. What was it like editing that down?
RW: A nightmare (laughs). No, it’s fun editing it down but it’s also a nightmare at the same time. Ben and I shot the footage ourselves so we were intimately familiar with what we had shot, but we hadn’t looked at it for many years. When we would shoot on tapes and we would put them into safety deposit boxes. We didn’t look at the footage. Our agreement with the legal team was we wouldn’t put a film out until the case had resolved, so we didn’t even look at the footage until we knew it was going to the Supreme Court and then we only had six months to finish a film. So it was a really fun, sort of nightmarish process to have to go through all that footage and figure out what we had and how we could put it into a cohesive narrative, but that’s where all the chips fall into place. Our main editorial goal was to balance a legal story with the human story. If you look at the structure of the film, it leads in and out of legal intricacies with the lives of the plaintiffs, and that was sort of the balance that was always the goal to strike. Hopefully we did in the end.
BK: Was there anything in this documentary that you wanted to include that you were unable to for one reason or another?
RW: It would have been great to have footage of the Supreme Court just to get to see them in action. I liked what we were able to do with the scene and hearing their voices is amazing. I can picture it myself, and as an audience member I would love to be able to picture those nine justices in action.
BC: There were some very special, intimate moments with the plaintiffs such as the day after they testified. Everyone left the courtroom and went into this sort of back secure elevator that was closed to the public, and everyone that was involved in the case was in there including us. And as soon as the elevator doors shut everybody burst into chairs. Those little special moments that, because you’re in a courtroom you can’t be filming, I think it would’ve been great to have. But fortunately there were plenty of other joyful moments that we could put in the film.
BK: I was talking with another documentary filmmaker recently and she talked about respecting the space in terms of keeping a certain difference from your subjects. Do you think you were able to pull that off?
RW: I think it’s inevitable in a film like ours that lasts for five years that’s so personal and with issues that are personal to Ben and I, we are gay Californians, that it’s hard not to have a respect for their bravery. Also, seeing them go through the wringer during this case, it’s hard not to feel invested in what happens to them. So we tried to be very respectful of telling their story faithfully, and also if there were things that they didn’t want to be part of the process we were respectful of that, but to their credit that was very few and far in between. I think one of my favorite parts of the film right now is that we are releasing it, and Ben and I are not holding cameras anymore. This morning we were all in the same room and we got to spend time with them without any of us working. It’s just getting to enjoy being together because we did become friends with them during the process. We adored both of their families, we wanted them to get their fairytale ending, and we were thrilled filming their weddings so I think it’s just about finding a balance between respecting their privacy and also trying to make a great film. We obviously had a lot of respect for them as people and families.
BK: One of the things I love about this documentary is how it peels away at political labels.
RW: Thank you. That’s our goal. That’s what we wanted to do.
BK: Ted Olson was the lead attorney for the plaintiffs, and he is the same guy who basically gave us George W. Bush as President of the United States. What was your first reaction when you found out that he was going to be taking this case?
BC: We were definitely surprised. We knew who Ted Olson was, and he is one of the most famous conservative litigators in the country. At the time, Dick Cheney was probably the only prominent conservative who was speaking openly for same-sex marriage. When he took the case we were surprised, but then once we got to know Ted we understood a little bit more why. He was never really opposed to it and he believes in equal protection of the law and always has believed that. But what was so great about it was that we could look at the issues not in a political way and not in a partisan way. We could look at the facts and we could look at what scientists were saying. Preeminent scholars from around the world came and testified about what the real science and statistics say, and individuals like Kris, Sandy, Jeff and Paul could speak to their experience and how it affected them in a very real way. So I think it allowed those stories to be heard in a way that never had happened before.
RW: Yeah, and the case was engineered around stripping politics out of it. We sort of tried to mimic that in our film because we could have concentrated on a lot of political things. We didn’t want to make a traditional social issue film about one side’s opinion on an issue and the other side’s opinion on an issue and try to draw a conclusion from it. That just wasn’t our goal. Our goal was to tell human stories, and that is the trajectory of two couples. This isn’t a movie about gay marriage being right or wrong. It’s just watching what these two couples were put through and the extraordinary circumstances they had to go through. Most straight people propose, get married in a year and it’s very routine. That’s what they grew up thinking is normal, and these two couples didn’t go through that. They went through a completely rigorous zig-zag way of getting to their fairytale ending. So I hope that that’s what the film’s take away is; just human stories rather than the political things that just sort of overwhelm the issue.
I want to thank Ben Cotner and Ryan White for taking the time to talk with me. “The Case Against 8” is now available on DVD, Blu-ray and Digital.