‘The Case Against 8’ filmmakers were there as the case was made

A documentary telling the story of a landmark Supreme Court trial typically depends on archival photos, legal documents and interviews with historians or, with some luck, participants long after the trial itself.

Not so with “The Case Against 8.” The HBO documentary, opening in Los Angeles and New York theaters on Friday, captured the road to the Supreme Court as the bricks of that path were laid out.

The film follows the legal team that successfully argued against Proposition 8, California’s same-sex marriage ban that passed in 2008. Directors Ben Cotner and Ryan White got to be flies on law office walls during preparations for a series of trials and appeals that eventually ended with the Supreme Court in June 2013, leaving intact a lower court’s ruling that Proposition 8 was unconstitutional.

When Cotner approached White at the 2009 Sundance Film Festival about making a documentary following the lawsuit, the unlikely team of conservative Ted Olson and liberal David Boies — legal counsel on opposite sides of Bush v. Gore — is what made the case compelling to the filmmakers.

“But once we started to follow them and get to know the plaintiffs, it really became more about the plaintiffs’ journey,” Cotner said.

That journey became a five-year process for the plaintiffs, two gay couples who were denied the right to marry following the passage of Prop 8. Kris Perry and Sandy Stier, then of Berkeley (now living in Washington, D.C.), and Paul Katami and Jeff Zarrillo, of Burbank, agreed, after some deliberation, to appear in the documentary. “The Case Against 8” was already shaping up to be a legal thriller; the plaintiffs’ involvement meant audiences were also in for a romantic drama.

The couples and the legal counsel opened the doors of their offices and homes to Cotner and White, allowing their cameras into everything from cross-examination rehearsals to family Christmas gatherings. Perry said she trusted the filmmakers with this access — including filming her teenage sons — because of the duo’s “high degree of compassion and empathy.” For Katami and Zarrillo, it was because Cotner and White had a stake in the outcome too.

“I’d never worked on [a film] that had a direct effect on my life,” White said. “We’re both gay Californians, so it’s something that affects our lives too.”

The plaintiffs and lawyers — along with strategists of the American Foundation for Equal Rights (AFER), an organization created with the focus of overturning Proposition 8 — ultimately felt comfortable with Cotner and White’s presence throughout the process thanks to the directors’ skill at being inconspicuous, even with cameras in hand, in the middle of key strategy meetings.

Before starting the moot court that would become the documentary’s opening scene, Olson told the filmmakers that they could film just for 10 minutes. “But then he got in such a zone that he let us film the entire time,” White recalled.

Another scene reveals Zarrillo shedding tears on the anxiety-filled first day of trial, as he prepares his speech for the media. Deep in discussion about the speech with AFER co-founder Kristina Schake, Zarrillo was unaware White had followed them with the camera.

But the plaintiffs were of course fully cognizant of the cameras on them in the sit-down interviews for the film.

“For me, it was hard to talk on camera in those interviews about the ways in which you don’t feel like people treat you as equal,” Perry said. “[That discrimination] takes a toll on you already, then to have to stop and try to cover a lot of examples of it at one time and be reminded of it was emotionally draining.”

Notably absent from the film’s interviews are the opposing legal counsel or other Proposition 8 supporters. The “Case Against 8” directors decided to not interview lawyers defending the proposition, including Charles Cooper and David Thompson, who declined to comment for this article. White said to closely follow one side and then “to throw in one interview with the other side would just feel unfair.... It would just seem unbalanced without trying to make it half-and-half.”

Sheila Nevins, president of HBO Documentary Films, contends that the opposing legal counsel’s view is evident in the documentary’s scenes featuring transcripts from the trials. “You know what they think,” Nevins said. “It’s not really a film about what people think. It’s a film about how people who think certain things can change the course of history.”

The one exception to the defense’s absence in the film is witness David Blankenhorn, founder of the Institute for American Values, who was interviewed for the documentary after he changed his position on same-sex marriage.

Blankenhorn exemplifies a wave of change in public opinion in the last two decades: According to Gallup polls, Americans who believe same-sex marriage should be legal went up from 27% to 40% between 1996 and 2008. By 2013, when Proposition 8 was overturned, 53% were in favor of legalizing same-sex marriage.

That shift is important to Olson, who said in a recent interview that “winning in court was one part of our job, but winning public opinion was another part of our job.” He said that he participated in the film in part because he believed it would aid that second job description.

Nevins anticipates that those who buy tickets to see “Case Against 8” in theaters will already have some interest in the case and other LGBT issues, but she hopes the documentary will be eye-opening for more viewers who catch it on HBO (where it airs June 23).

Beyond the LGBT-supporter audience, the film has been finding success with those in the legal world. “Lawyers salivated over seeing the film more than anyone because it is such a legal thriller,” Cotner said. At a screening at Harvard Law School, Olson recalls, “students were just wild about it.”

As the film nears its limited theatrical release and HBO premiere, following a festival circuit that started with Sundance in January, the plaintiffs are balancing promoting the film with work and with some continued efforts to raise awareness about the case and efforts to legalize same-sex marriage in other states. All four have spoken to students about the case.

AFER co-founder “Chad [Griffin] always told us throughout the process, you’re just regular guys, you’re not activists,” Zarrillo said, “but I think now we’re no longer regular guys. We’re more activists.”

Once the couple feels it’s the right time to scale back their activism commitments, they plan to talk seriously about becoming parents — something, as discussed in the film, they didn’t want to do until they were married.

When Zarrillo mentions the possibility of showing “Case Against 8” to their kids someday, Katami jokes, “‘Your timeout is watching this documentary. ‘Again?‘”

[email protected]