Tuesday, April 22, 2014

Movie Review: The Case Against 8

The Case Against 8 is playing this weekend as part of IFFBoston. Conveniently it had a screening tonight at Harvard Law School, so I got to extend to IFF by a day and avoid a conflict or two in scheduling.

The movie tells the story of the legal battle to overturn California's Proposition 8 which was passed in 2008 and defined marriage as between one man and one woman. The battle to overturn it started with someone having lunch with Rob Reiner (really) who mentioned that a brother-in-law of someone (his? his wife?) knew lawyer Ted Olson and he might be interested in the case. Olson was a non-obvious choice being one of the most prominent conservative lawyers in the country; a founding member of The Federalist Society and infamously winning Bush v. Gore. More surprisingly he teaming up with his Bush v. Gore opponent David Boies to take the case.

It started with them searching for plaintiffs. They found two couples one gay and one lesbian living in California who wanted to marry to represent. They were picked to be perfect plaintiffs, nothing wrong in the background, good families, etc. The movie follows as they prepare for and argue the case before the US District Court and then the appeal of the ruling to the US Supreme Court.

If you follow the news at all you know what happens. They win. (I really don't think that's a spoiler). So the question is how does the movie decide to tell the story. It turns out they knew this was going to be an important case for history and decided to film it from the beginning. They were a little hampered by the decision of the court to now allow the District Court trial to be broadcast (though it was apparently filmed and the film is now under seal for no great reason). So it's a legal story but it's also an emotional one so they follow the plaintiffs as they prepare for the trial, and are nervous the night before, and happy at winning and then getting married immediately after the Supreme Court decision.

Now I'm probably in the minority in this but I wish there was more law in this film and less personal drama. I'm already on the plaintiffs side and don't need to be convinced that "they're just like ordinary people" or that "letting them marry won't hurt anyone else" or that they've experienced discrimination in their lives. At 109 mins this isn't a short movie, there's lots scenes of lawyers typing and looking seriously at big stacks of paper and milling in and out of offices and cars, all to deliberately passed serious sounding music. The legal stuff is covered but there are two parts that sounded fascinating and are just mentioned.

It seems David Boies is a genius cross-examiner. At one point in the film Olson says that Perry Mason moments only happen on television and when Boies is cross-examining and it happened in this trial. The defense called several witnesses but they weren't that impressive. Their last was David Blankenhorn, a vocal advocate against same-sex marriage but not an actual expert in much. Boies apparently asked him a series of questions, and Blankenhorn gave a series of answers and by the end he was saying that the plaintiffs should be allowed to marry. The film interviews him and he says he'd answer them the same today. He's since come out in support of gay marriage. I wish the movie covered this more, in some cases they read briefly from the transcript but not much if any from this.

The other was Olson's closing statement. Boies says it's the best argument he's ever heard in a court, but we don't get to hear any of it. Now both of these happened at the District Court, after this we follow them to the Supreme Court which ends up the deciding the case on standing. That is a technicality in whether the plaintiffs of that case can show harm that happened to them giving them the basis to sue. The court decided in an unusual 5-4 grouping, Roberts, Scalia, Ginsburg, Breyer, and Kagan for and Kennedy, Thomas, Alito, and Sotomayor against. The film doesn't cover that at all and doesn't address the issue that this wouldn't change any minds on the merits of the case as the District Court ruling details might.

The movie is good. I'm sure most people will be very moved by the personal journey of the two couples. At 109 minutes I think there's a fair amount of filler (and random scenes with Rob Reiner in the background) and I wish there was a little more in it that would actually convince someone that this is a real civil rights issue and is about treating people equally and fairly. The film had the opportunity, David Blankenhorn was convinced (and he is interviewed in the film) but didn't dive into it. As I read about the case on wikipedia I see there's a play called 8 that might be more to my liking.

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