The Case Against The Case Against 8

I watched the HBO documentary on the Prop 8 case over the weekend – and also had a drink in Ptown and then a lively breakfast discussion with the directors, Ryan White and Ben Cotner, who were as intelligent and as sincere as you could hope for in two young documentarians. And the first thing to say about the doc is that it is not as egregious or as misleading as the Becker book or the Olson-Boies exercize in self-love and credit-grabbing. Instead, its main impact on most viewers will be a net-positive in its portrayal of the moral and legal arguments for marriage equality. And the focus is mercifully on the human story of the plaintiffs, the best angle for a documentary that won’t bore you. I found its most affecting scenes to be toward the end, as the two plaintiff couples finally get their chance for a civil marriage that cannot and will not be taken away. You have to have a heart of stone not to be moved. And there are internal trial preparations that really spell out why civil marriage is non-negotiable if equal protection means anything in a civilized society. It was indeed great to hear arguments many of us honed in earlier, lonelier times come back in the words of the trial.

Maybe it’s because I’m used to these arguments at this point, but the film dragged a bit for my taste. It lost what would have been a key opportunity as it was being filmed  – because the trial was supposed to be televised and then wasn’t. Without those scenes, the film focuses, understandably, on the plaintiffs. The trouble with this strategy is that, in a highly-visible lawsuit, they’ve been selected precisely because they are picture-perfect, squeaky-clean representatives of the gay community. There are no quirks in their background that could be exploited by the other side in the legal drama (or appeal to viewers); their families are all supportive; their blond, attractive children are behind them; their only conflicts, so far as we can tell, are which ornament to place where on the Christmas tree (a scene that is included in the soft-lens political-ad style of the movie). Similarly, there are no flaws whatsoever in any of the “good guys” and all the opponents are hateful, irrational bigots. No one among the good guys has a fight in the movie; no one even as so much as a disagreement. Ted Olson and David Boies get a treatment like subjects in an old Catholic “Lives of the Saints” primer. Griffin is portrayed as in the trailer above: a lone bucker of the trend who single-handedly brought gay equality to America. The number of hugs per frame is beyond counting.

It all feels like a really slick p.r. campaign – or a propaganda movie they’d show at some endless gay fundraiser – rather than an objective or inquisitive documentary. That was Hank Stuever’s view as well. It’s a movie not about a civil rights moment, he argues, but about “the values of show business and mass marketing.” And when you’re marketing something, you show no wrinkles or flaws. You carefully stage every single thing to advance the product.

So there are no interviews with any marriage equality opponents to make their case. There are no interviews with anyone who worried about the lawsuit’s possibly unintended consequences (they are dismissed by Chad Griffin in the film as in-fighting cowards). There is no mention of Olson’s unique demand in the history of marriage equality litigation to be paid $6.4 million rather than work pro bono. There is no interview with Charles Cooper, their chief legal opponent. No facts or ideas of arguments are allowed to get in the way of the triumph of Chad Griffin’s will. And that includes the actual denouement of the case, which was, as Mark Joseph Stern notes today, a clear and demonstrable failure.

Everyone knew from the get-go that this case could well turn on the rather mundane legal issue of “standing,” rather than on any deeper constitutional issues regarding the civil rights of gay citizens. That was one reason I was fine with the suit – because I thought it could play a role in the public education necessary to overturn Prop 8 at some point, and would probably not do any real harm on a federal level because it would likely be dismissed on technical grounds. But that’s emphatically not how the film portrays it.

This was always, from the film’s perspective, and in the words of Griffin’s PR partner, Kristina Schake, in the movie “one of the most important civil rights cases ever before the Supreme Court.” That’s demonstrably untrue – but remains, like all the statements from Schake and Griffin, unquestioned in the film. (There is no narrator, so the subjects of the documentary who gave the film-makers exclusive video access, essentially dictate the message of the entire film – which, since they are the p.r. maven behind all of this, is only fitting.) The case had the great and wonderful effect of ending Prop 8, but outside California, it only upheld Supreme Court federal precedents on the matter of “standing.” And the entire rationale of filing the suit was to change the federal situation, not the state one. So, on its own terms, the lawsuit failed. And yet the film does all it can to hide that fact, introducing the “standing” issue only when they had no choice at the very end (and never before), and breezing right past it to conflate the Windsor case and the Perry case as if they were both landmark victories.

So the re-writing of history is done by omission, elision and sleight of hand, rather than by egregious slander. And so the Perry decision is counter-posed just before a series of breakthroughs in marriage equality, as if it were cause and effect. You’d have no idea that marriage equality was already nationally at 46 percent support – up from 27 percent in 1996 – before Prop 8 came along at all. Or that we already had marriage equality for four years in America, with momentum building fast.

We are also told, by Chad Griffin, that before Ted Olson, marriage equality wasn’t even a Democratic issue, let alone a Republican one – “it was only the left of the left” that supported it. Getting Olson “changed everything” in making the national debate bipartisan. But this again is untrue. The marriage equality movement was born as much on the right as the left, and has had gay conservatives and Republicans on its side since the late 1980s. As for Republican figures, Dick Cheney, the Republican vice-president of the United States for eight years was for it; Alan Simpson, Republican folk hero, was for it; Bill Weld, the Republican governor of Massachusetts, where marriage equality first became a reality, was for it in the 1990s; and you’d think the Californians would also be aware that the Republican governor of California, Arnold Schwarzenegger, supported it as well as around 30 percent of Republican voters. Absolutely getting Ted Olson to argue the case was a major coup, as was his adoption of most of the arguments conservatives had been making on this subject for years. But the idea that he alone changed the partisan debate on this is surreal.

Then there are distortions about those who opposed this lawsuit. We are told – again with no balancing counter-view – that the Perry federal suit was “years before this was supposed to be happening.” Really? Then how did the Windsor case arrive at the same time – and with much broader impact? Does anyone think that Prop 8 would have survived the Windsor decision anyway? Several other state bans have fallen by the wayside since, because of the Windsor – not the Perry – case. And that, of course, tells you something about the irrelevance of this case to the broader marriage movement. It was, in the end, unnecessary; it failed to move the federal needle a jot; and it needlessly divided and embittered a usually united, if fractious, coalition.

None of this will be apparent to the vast majority of people who watch this film. The emotional human power of the plaintiff’s stories will obliterate any skepticism an audience might have about the historical accuracy of the film, and liberal supporters of marriage equality will simply stand and cheer (as well they might on the core question). Anyone opposing marriage equality will be turned off by this movie’s crude assumption that only raw hatred can explain their views. As for the rest of us who have lived through a history this movie ignores or dismisses in its massive over-selling of this single case, well, we’ll just have to wait for a documentary or a history that does justice to the whole sweep of it. And that may be a long time coming. The opportunists and self-promoters have to have their say first.