Sean P. Means: At Sundance, ‘Case Against 8’ points the way for Utah’s same-sex couples

By Sean P. Means

The Salt Lake Tribune

Published: January 17, 2014 10:10PM
Updated: January 18, 2014 12:32PM
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Principals in the U.S. Supreme Court case overturning California's Prop. 8 gay-marriage ban talk to the press after the court's ruling, in a scene from "The Case Against 8." Courtesy HBO Documentary Films

When filmmakers Ben Cotner and Ryan White were making “The Case Against 8,” and when the Sundance Film Festival programmers picked it for the U.S. Documentary competition, neither group could have known that the film would become so timely — especially for its Utah audiences.

The person responsible for making “The Case Against 8” so relevant here is Judge Robert Shelby, the federal district judge who ruled on Dec. 20 that Utah’s Amendment 3, banning same-sex marriage, is unconstitutional.

“I’m really excited the film is premiering in Utah,” Cotner said in a phone interview this week, ahead of the movie’s debut, Saturday at noon at the Temple Theatre in Park City. (It premieres on HBO Documentary Films in June.)

The fact that Utah is the first red state where same-sex marriage has been legal shows, Cotner said, that “it’s not a liberal-conservative issue. It’s a human-rights issue.”

Cotner and White live in California, so they followed closely the developments of that state’s 2008 ballot measure Proposition 8 — which made same-sex marriage illegal, reversing a state judge’s ruling. They got in touch with the American Foundation for Equal Rights, the well-heeled activist group (whose board includes director Rob Reiner and screenwriter Dustin Lance Black) that was bankrolling a federal lawsuit against the state of California.

AFER officials let the filmmakers sit in on the early meetings between the lawyers and the prospective plaintiffs. “To their credit, it was a very sensitive process,” Cotner said. “As the case progressed, we were there and they kept allowing us to film.”

“I think everyone involved in the case recognized how historic it could be,” White said.

Cotner and White split the movie evenly between the legal case and the personal stories of the two couples — Kristin Perry and Sandra Stier of Berkeley, and Paul Katami and Jeffrey Zarrillo of Los Angeles — who became the plaintiffs in the case that, once it got to the U.S. Supreme Court, became known as Hollingsworth v. Perry.

The filmmakers catch the two couples living their lives — Perry and Stier attending the high-school graduation of one of their sons, for example — and interview them about their apprehensions of being such public figures.

On the legal side, the movie finds two more fascinating characters: lawyers Ted Olson and David Boies, who represented the plaintiffs at trial, at the appellate court and in the U.S. Supreme Court.

Olson and Boies make for one of modern history’s great political odd couples. They were on opposite sides in the most famous (or infamous, depending on how you voted in the 2000 election) Supreme Court case ever: Bush v. Gore. Boies represented Al Gore. Olson argued for George W. Bush — and, when the Republican won, became Bush’s solicitor general, the lawyer who argues the government’s case before the Supreme Court.

White called the pairing of Olson and Boies a brilliant political strategy on the part of same-sex marriage advocates. “It takes the political veil away,” he said, “and focuses a lot of press attention on the case.”

Though the movie focuses on the side arguing against Prop. 8, White said “we went out of our way not to demonize them.” The film features an interview with the one most direct expert witness the “Yes on 8” side put on the stand — who, during Boies’ cross-examination, fairly completely disowned his own argument.

Shelby’s ruling references the U.S. Supreme Court’s decision in the Perry case, which “laid the groundwork for cases like the Utah case,” Cotner said.

“The Case Against 8” offers a lesson to Utahns — particularly the estimated 1,360 gay couples who got married in that two-week window between Shelby’s ruling and the U.S. Supreme Court’s stay on that ruling — about the pace of justice. That lesson is: Settle in, this may take a while.

“We watched Kris and Sandy and Jeff and Paul win their case [at trial] in 2010, and they didn’t get married until June 2013,” White said. “It’s worrisome to watch Utah couples go through the same thing. … How long do we put them through this process? How long do we put them in limbo?”

For those 1,360 couples in Utah — as well as folks in Oklahoma (where a same-sex marriage ban was declared unconstitutional this week, but stayed until the Utah case goes through the 10th Circuit Court of Appeals in Denver) — the best consolation may be a quote from the man whose birthday will be celebrated nationwide on Monday: Martin Luther King Jr.

King famously said that “the arc of the moral universe is long, but it bends toward justice.” “The Case Against 8” shows how long that arc can be, and how sweeping the bend.

Sean P. Means writes The Cricket in daily blog form at www.sltrib.com/blogs/moviecricket. Follow him on Twitter @moviecricket, or on Facebook at www.facebook.com/seanpmeans. Email him at spmeans@sltrib.com.

Sundance screenings

“The Case Against 8” • Saturday, Jan. 18, noon, Temple Theatre, Park City; Monday, Jan. 20, 8:30 a.m., The MARC, Park City; Thursday, Jan. 23, 1 p.m., Redstone Cinema 2, Park City; Friday, Jan. 24, 9 a.m., Yarrow Hotel Theatre, Park City; Saturday, Jan. 25, 12:30 p.m., Rose Wagner Performing Arts Center, Salt Lake City.

Note • The film’s invitation-only premiere party on Saturday will include a wedding reception to honor the estimated 1,300 gay and lesbian couples who married recently in Utah.