★★★★★ | The Case Against 8

On the morning of November 5th 2008 our euphoria over the election of Barak Obama as the first African/American President of the US was severely dampened when we learnt that voters in California had passed Proposition 8, albeit by a slim majority. Overnight they had taken away the legal right of same-sex marriages in the State. It was a bitter blow for those still wanting to marry and it created sheer confusion and dismay for the 18000 couples that had wed in the past few months.

There was immediate talk of mounting a legal challenge in federal court but it wasn’t until someone had the inspired idea of engaging the services of Ted Olsen did the notion take flight. Olsen seemed a highly unlikely choice as he was not only a prominent Republican who had been the US Solicitor General but more famously had been the chief advocate in the US Supreme Court in Bush vs Gore which resulted in George W. snatching the Presidency from Al Gore who had won the popular vote. There was a great deal of opposition to Olsen from many sections of the gay community who thought he was a ‘mole’ planted by the Right wing, and also many in the Republican considered him a traitor to their cause.

Olsen however soon showed his sincerity and total commitment to fighting for the overturn of Prop 8 by persuading prominent Democratic Lawyer David Boiles, who had been his opposition when he had acted for Vice President Gore, to now be his co-counsel. It was a shrewd move as the two high-flying lawyers not only had a great deal of respect for each other, but they brought different skills to the case and made an invincible team.

Olsen explained the reasoning for his own stance very clearly in the film. “Marriage is a conservative value. It’s two people who love one another and want to live together in a stable relationship, to become part of a family and part of neighborhood and our economy. We should want people to come together in marriage.’ It was one of the many times in this riveting documentary that Olsen quietly demonstrated what an outstanding humanitarian he really is.

The legal challenge was mounted by Chad Griffin and the leadership of American Foundation of Equal Rights (AFER) and what strikes you so vividly as this story unfolds is not just the dogged determination and commitment of the vast team but the realisation on how much gay activism has changed. Gone are the rabid well-meaning dis-organised hippies of my youth whose anger always fueled our protests that so often muddied the water rather than help us make progress as the establishment ran rings around us.

Griffin’s team of lawyers and the lead counsels mounted the whole campaign with such sheer professionalism, micro-managing every minute detail that made for an impressive compelling argument. Their strategy was to focus on the very obvious facts of the matter with the reality that this was about a basic human right. Whereas the opposition who were much better funded, relied on hot-headed rhetoric and their own personal opinions steeped in bigotry and hate with scant regard for the proven facts.

When David Boiles personally supervised the taking of depositions from all the expert witnesses the opposition put forward, he was so relentless that they all but one, withdraw before the first trial. The remaining ‘expert’ David Blankenhorn was the cause of some merriment when the Team uncovered that asides from the tome he had penned on marriage his only other qualification was his Masters Degree. It was on Victorian Cabinet making! And later on when he was being cross examined by Mr Boiles on the witness stand in court he did a complete U turn and actually agreed that same sex marriage should be legalised. It was, as Mr Olsen described as ‘a Perry Mason moment’ and the start of the collapse of the Opposition’s case.

AFER’s thorough search to find the perfect Plaintiffs on whose behalf the Law would be challenged was impressive. More so that the two couples who were selected were four of the most self-effacing brave individuals who were willing to step out of their comfort zones and allow every facet of their lives to be examined in minute detail. They were never ever be out of public gaze for the next 5 years.

Kris Perry and Sandy Steir had married in 2004 and had four sons, whereas Jeffrey Zamillo and Paul Katami had been together for 6 years and wanted to marry before they started a family. The fact that they allowed the filmmakers to record even the very painful experiences of some very brutal and highly personal questioning they faced when they were put through their paces by Olsen as a practice run, endeared them even more to us all.

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The Federal trial before Judge Walker resulting in Prop 8 being struck down, and the subsequent Appeal by the Opposition that failed leading to the whole Case winding up in the US Supreme Court was covered extensively in the media. However what this exceptionally wonderful documentary does is give a fascinating record of all the goings on behind the scenes and in particular a very highly personal look at some of the crucial and personal highlights that made this struggle seem even more poignant. When the victorious four Plaintiffs are finally on the steps of the Supreme Court after the Justices have struck D.O.M.A. down, Chad Griffin passes them his cellphone. Barak Obama is on the line from Air Force One proffering his congratulations. If you were not crying before then, you certainly were then. It is a moment in history which should never be forgotten.

There is another wee part later on when the tears are of joy. Jeffrey and Paul are at Los Angelas City Hall where they are about to be married by the Mayor himself. It is the first day that same-sex is legal again in California but the Clerk refuses to give them a License as she claims she has not been officially notified. The ACER lawyer accompanying the men makes a quick call passes the phone to the Clerk’ s Supervisor. On the line is Kamala Harris, California’s Attorney General who orders him to issue the license immediately. It’s so good to have friends in high places.

Filmmakers Ben Cotner and Ryan White approached AFER in 2009 with the idea of making this documentary not knowing how the legal action would turn out. They were giving unprecedented access and so were there filming every single step of the five year battle. They spent endless emotional days and sleepless nights with the entire team and the Plaintiffs and ended up with over 600 hours of footage.

What they achieved, along with editor Kate Amend, is a remarkable concise and spellbinding account that covered this historic turning point in a style it so richly deserved. It perfectly captured the sheer energy of all the people who put their own lives on hold and gave this fight their all to enable gay men and women should be accorded this basic human right and with such dignity.

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Even though we all knew by now the outcome of this particular fight it’s still impossible not to be somewhat overwhelmed with emotion when you witness this account. You will certainly not be the only one who is reaching for a Kleenex more than once.

N.B. the final word must go to Ted Olsen, who along with David Boiles, deserve nothing less than our utmost respect and deep gratitude (and maybe the Presidential Medal of Freedom too!) Mr Olsen simply said that equal rights are always worth fighting for.


About the author: Roger Walker-Dack
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