Thursday, June 19, 7:00 pm, Castro Theatre
premiered June 23 on HBO
|The Prop 8 plaintiffs (L to R):|
Kris Perry, Sandy Stier,
Paul Katami, Jeff Zarrillo
|The lawyers: Ted Olson (L)|
and David Boies (R)
The Case Against 8 is a remarkable fusion of an eloquent and concise exposition of the facts with honest emotional expression of the ups and downs of the case. The plaintiffs received support from around the country and around the world, but they also received hate mail and even death threats on their answering machines. The women have children who were in school during the legal odyssey, so they talked it over with the kids before agreeing to sign on as plaintiffs. The men talked it over with their families, receiving strong support from their parents. We get to see snippets of their everyday lives through the course of the trial and appeals, and get to know them and see why they felt that fighting for marriage equality was important and worthwhile. We also get to see the legal team preparing for the case and discussing their view of its importance in the fabric of American society.
On May 15, 2008, the California state supreme court struck down Proposition 22 (March 2000), an initiative statute that defined marriage as one man and one woman, and a law passed by the legislature in 1977 with similar effect. The state court ruled that Prop 22 violated the state constitution, since marriage is a "fundamental right" and that laws treating gays and lesbians (a “suspect class”) differently from heterosexuals were subject to "strict scrutiny," meaning that the state had to show a compelling governmental interest, the law must be as narrowly tailored as possible to preserve that compelling interest, and the law must use the least restrictive means possible to achieve its goal. Following that decision, thousands of California same-sex couples were legally married. However, opponents of same-sex marriage gathered signatures to put Proposition 8 on the November ballot alongside Barack Obama and John McCain.
Unlike Prop 22, Proposition 8 was a constitutional amendment, making it much more difficult for the court to strike down. On May 26, 2009, the California Supreme Court ruled that Prop 8 was a valid state constitutional amendment — a bizarre legal holding that a bare majority of voters could strip a fundamental right from a suspect class, as Justice Carlos Moreno noted in his dissent — although marriages performed between May 15 (when Prop 22 was struck down) and November 5, 2008 (when Prop 8 was enacted), remained valid. The American Foundation for Equal Rights immediately began crafting a legal strategy to win back equal marriage rights, once and for all.
The first steps were to assemble a legal team and choose plaintiffs, specific same-sex couples who would be the human faces of the case. Attorney Ted Olson was, to say the least, not well loved in the LGBT community because of his pivotal role in putting George W. Bush and Dick Cheney into the White House, so there was considerable suspicion around the possibility of his involvement in the case. Also, given the fact that gay rights issues had a terrible track record in the courts, and the conservative majority on the US Supreme Court, there was great apprehension of the possibility that a failed court challenge could leave the effort for same-sex marriage in even worse condition than it already was. However, Olson persuaded the AFER board that he was sincere in seeing the issue of marriage equality from a traditionally conservative, libertarian perspective. A number of couples were considered to be the named plaintiffs, with Perry and Stier and Katami and Zarrillo chosen as relatable, photogenic couples without any serious public relations skeletons in their closets.
The initial court challenge was in federal district court for the Northern District of California, with Judge Vaughn Walker presiding. During that trial, the star witness defending Prop 8 was David Blankenhorn, the author of numerous essays, articles, and books opposing same-sex marriage. Under cross examination by David Boies, Blankenhorn admitted that allowing same-sex couples to marry (not just have civil unions or other "marriage-like" status) would improve the situation for the children of those couples, and that allowing same-sex marriage "would be a victory for, and another key expansion of, the American idea." Judge Walker ultimately ruled that Blankenhorn was not qualified to testify as an expert, and several other defense witnesses withdrew from the case, even after Judge Walker's original plan to allow TV cameras in the courtroom was turned back. After many legal scuffles — including issues like whether Imperial County (in the very southeastern corner of the state) would be allowed to intervene to defend the case, since none of the state officials and none of the county officials named in the lawsuit was willing to defend it — on August 4, 2010, Judge Walker ruled that Prop 8 failed not only the "strict scrutiny" test, but even the lower bar of the "rational basis" test, and that Prop 8 was unconstitutional on grounds of due process and equal protection under the Fourteenth Amendment. The full text of the decision is a great read.
The next step was the appeal to the Ninth Circuit, which ruled 2–1 that Prop 8 was unconstitutional, since its only effect was to deny same-sex couples the right to use the word "marriage" to describe their committed relationships. (California law already provided, and Prop 8 did not challenge, all other rights and privileges of marriage to same-sex civil unions.) Although the Ninth Circuit struck down Prop 8 on narrow grounds, the text of the decision made it clear that they felt it was unambiguously unconstitutional to deny marriage to same-sex couples. The Ninth Circuit decision was rendered on February 7, 2012, and reaffirmed two weeks later, when the appeals court denied a request for a re-hearing by a larger panel of judges.
The US Supreme Court took the appeal, and heard oral arguments on March 26, 2013. On June 26, 2013, the Supreme Court ruled 5–4 that the defenders of Proposition 8 (ProtectMarriage.com, the sponsor of the ballot measure) lacked "standing" to appeal Judge Walker's ruling. This ruling essentially tossed out Prop 8 on a technicality, since the governor and the attorney general refused to defend Prop 8 in court and the ballot proponents were not legally permitted to file the appeal. It is important to note that the US Supreme Court left untouched the fundamental question of whether the US Constitution, particularly the "due process" and equal protection clauses of the Fourteenth Amendment, mandate marriage equality. However, they left standing Judge Walker's ruling, and so California now has marriage equality. The spread of marriage equality to a total of 19 states (and counting) has been advanced much more by the US Supreme Court's decision striking down the Defense of Marriage Act (DOMA) in U.S. v. Windsor (decision released the same day as the Prop 8 case), but more fundamentally by the dramatic shift in public opinion around the issue over the last six years.
I've spent much more of this review talking about the legal and procedural details of the case, because I'm an occasional political blogger who is fascinated by the legal system (although not sufficiently so to go get a law degree!), but The Case Against 8 is much more about the people involved: the plaintiffs, their families, AFER, and the legal team, with just enough of the legalese to provide context to their story. The filmmakers had extraordinary access to the principals over a span of three years, and expertly sifted through mountains of footage to piece together a compelling narrative. I highly recommend this documentary.