"The Case Against 8" directors: "It’s so nice to have a gay film that has a happy ending"

Ben Cotner and Ryan White on their new documentary, activism and dealing with the Supreme Court's ban on cameras

By Daniel D'Addario

Published June 23, 2014 3:45PM (EDT)

Ben Cotner and Ryan White       (AP/Andy Kropa)
Ben Cotner and Ryan White (AP/Andy Kropa)

Ben Cotner and Ryan White have made the authoritative film about the fight against Proposition 8 -- but they insist that it's only part of the story.

Marriage equality has been a defining political issue of the past decade, and one of its permutations has been the legal battle against California's 2008 ballot initiative outlawing same-sex marriage. Cotner and White followed lawyers David Boies and Ted Olson (respectively, liberal and conservative litigators) as well as plaintiffs (lesbian couple Kris Perry and Sandy Stier and gay couple Paul Katami and Jeff Zarrillo) for years in order to make this movie.

"The Case Against 8," premiering on HBO tonight, differs substantially from Jo Becker's controversial marriage-equality history in that it presents itself as a single chapter in a more expansive history. Viewers are left with the understanding that the battle continues on many fronts. "We wanted to make a character film about those people," said White -- and, indeed, the film makes no claims larger than the case merits.

All the same, of course, the overturning of Proposition 8 was a major moment in an ongoing battle, and this documentary is a valuable -- and fascinating -- portrait of this corner of the marriage equality fight.

You had to get access from the various people involved -- including Boies and Olson, the Human Rights Campaign's Chad Griffin, and the plaintiffs. Was that difficult?

Cotner: We started in 2009, actually, right as the case was being filed. We were lucky enough to learn through friends at the American Foundation for Equal Rights that a case was going to be filed and that they were possibly bringing together Ted Olson and David Boies, and I think that’s what initially drew Ryan and I to this. Like, Oh, here’s a very interesting court case that’s a unique pairing of a conservative and a liberal on an issue such as gay marriage -- taking the politics out of the issue is something we’re very intrigued in. And so we approached the American Foundation for Equal Rights about the idea of making a film about it, and they were initially receptive but of course they were like, You know what, there are four plaintiffs involved, there's the issue of confidentiality with their lawyers, and obviously Ted and David are high-profile figures, so you also obviously have to get their permission.

So as the case  started to come together, and the various groups started to meet, we were actually in some of those early meetings, and we spoke with the four plaintiffs and with Ted and David about what our intentions were. So, it was kind of an ongoing process of telling people what our ideas were and gaining trust with each of them because obviously it’s very sensitive for a high-profile case like this.

We were very clear that there would be strict confidentiality until the case evolved at the Supreme Court. So Ryan and I sort of became embedded with them in the law offices and observing what they were doing, and to their credit, they believed that the case should be as transparent as possible.

I think that’s why they initially let us in, and it, but it did take a lot of time for us to build that trust with them over the years. And as things went on, we would get closer and closer with them and get more and more access.

The scope of this film by its very nature is specifically limited to the Supreme Court case. A book that came out this spring by the journalist Jo Becker from the New York Times -- and faced criticism as a work of journalism, because it told a story of the marriage equality movement that portrayed the people who gave her access as the most important people. Did concerns about issues of access cross your mind? 

White: We're all familiar with the book, you know? And Ben's and my point of view all along was that our film was called "The Case Against 8." It was about a team of people that were fighting this fight, and it happened to last five years, and we wanted to make a character film about those people. So our film was never, by any means, supposed to be a comprehensive telling of this whole marriage equality movement. It’s a chapter of that history and it’s a character film about these people who took on Proposition 8 and ultimately, most of all, it’s, you know, a true love story and it’s about two couples that had to go through extraordinary circumstances to get the wedding of their dreams.

And so, Ben and I are both gay. We both grew up in parts of the country that are, were much more conservative. I grew up in Georgia, and he grew up in Indiana. As kids, we never even entertained the thought that we would ever live in California, much less be able to get married one day. So, I think we’re both very aware of, you know, the decades and thousands of heroes who fought this battle before the Proposition 8 team, many of which have been told in great stories, and many of which are stories still to be told.

And then also the many heroes and movements that will have to come after the Prop. 8 battle, since we still don’t have marriage equality in 50 states. And at the beginning of our film, it’s bittersweet, you know. And there are 31 states without marriage equality, and so, we’re hoping as storytellers and filmmakers that other filmmakers and writers will pick up their pens, pick up their cameras, and tell all these stories, because, because collectively, you know, these will be the canon of that movement, and hopefully one day there will be a comprehensive story to be told about the entire picture of marriage equality when it’s all said and done.

Early in the film, Ted Olson says to the camera that marriage equality is or should be the classically conservative position. He wants people to be able to get married and pay taxes as a married couple and contribute to neighborhoods, communities and so on and so forth. That's also the gay criticism of marriage equality -- that it's assimilation. Have you run up against gay people who don’t support, or are spurious of, the focus on marriage equality as the center of the current gay movement?

Cotner: You know, it’s funny, we were just screening the film in Portland, Oregon, at a great festival called QDoc, an exclusively queer documentary festival. It’s the only festival in the world like that, and ... there are a lot of people who don’t subscribe to the idea of marriage as a good institution — gay people.

But it was fun having them see the film and hear their reaction, that a lot of these people who don’t really look to marriage as a viable institution can watch our film and say, I can see the value in it and of course there’s no question that it should be an option, it should be available to gay people. They can appreciate that.

And you also have a lot of straight couples who’ve watched the film and said to us afterwards that, God we really took our marriage for granted. Like, Now we want to get married again. There's definitely an interesting political debate. But I think as people have seen, it’s misleading. It’s not about that. It’s about whether we should have access to the same institutions as everyone else.

I also feel like something that people are skeptical about is whether or not causes other than marriage get lost in all of this. Have you heard criticisms that we should be focusing on, say, gay teen homelessness rather than the rush to marriage? 

White: I really haven’t. And I think that harkens back to our earlier point, where there are so many stories to be told, you know? And I think you run into danger with LGBT people if you start saying, "This story is more important than this one" or "This story is more important than that one.” I think the value is that they are all important stories to be told, so a story on gay homelessness -- I hope someone makes that film, that’s obviously very important.

But I think the idea is that collectively as a people, we need to tell as many of these stories as possible. Likewise, like Ben was saying at the Portland film festival, there was David Weissman's "We Were Here," the AIDS documentary, which is an amazing film, and then "How to Survive a Plague" came out the next year, and it’s an amazing film. That’s obviously a much darker, life-or-death, part of LGBT history, and we were talking with David about that during our film and were kind of nervous, you know, because there’s some insecurity that our generation didn’t have to deal with that and therefore our film might not have the import that his film does, and he laid that to rest. He was so kind when we talked about our film. But he said, "I cried from beginning to end watching your film, and it’s so nice to have a gay film that has a happy ending, because we just don’t have those. And we didn’t document those. We weren’t documenting those. We were doing documentary films with endings that were death."

Cotner: I would just add to that that -- I think that there’s no question that the most powerful thing that we can do to change hearts and minds is for people getting to know gay and lesbian people and LGBT people and I think by telling stories like Paul and Jeff and Kris and Sandy’s, people who otherwise aren’t familiar with the issue and don’t necessarily know a lot of people can see them and identify with their lives. I think that will lead to improvement on these other issues as well. It'll make people care more about engaging some of these other important issues. It’s important for people to empathize with gay people in as many ways as possible.

As gay filmmakers, have you found that it's difficult to get funding if you’re seen as making niche work -- movies about gay people? Do potential producers or broadcasters or production companies kind of hesitate because it’s a story about gay people?

White: This is my third film. My first film was about soccer, and my second film was about the Beatles. My third film was about gay marriage. So, they’re all different. And I’m pretty experienced with approaching funders and distributors about what they’re interested in. I can’t speak for narrative films, but I think, I think films about the fringe or outliers or groups or parts of society that are marginalized have -- I don’t want to say an easier time getting funding, but you have access to funds that you don’t if your film’s purely for entertainment value.

So Ben and I were very lucky that our film was seen as a civil rights film, as a human rights film. And we were able to access that, because we made this film on our own, for a long time having to fund it ourselves, which is not great for your credit cards. So we were able to get quite a few grants from groups that fund films that they feel are about social justice. And then HBO came on board, and they’re clearly a huge supporter of social justice films, and especially LGBT films in the documentary space but also the narrative space as well. And they’ve been an amazing partner to have.

I don’t think Ben and I ever dreamed that we could have this amount of resources behind our film and that our film would be getting this wide of a release and that this many eyeballs might see it. And that’s why we made a film, you know, hoping, thinking of gay teenagers in Kansas and Georgia who might be able to see this and see people fighting for their rights.

Did you contemplate what this film would have looked like if it didn't have a happy ending? Would a less favorable ruling have screwed up your film? 

Cotner: We obviously, when we first started filming, didn’t know that there would be a trial to begin with. We just thought, you know, this is an interesting idea, so let’s start filming on the outside chance that it becomes something. So like the lawyers and the plaintiffs, there really wasn’t any idea that it would go to trial. Certainly it was a long shot to go to the Supreme Court. But you know, we went in there with this idea that regardless of the outcome, it’s important. And in a sense, if they lost, it’d be even more important to see, for people to understand what was happening.

So you get to go behind it to see what the experts were saying. So I think that we certainly didn’t know that we had a film until three years in when the Supreme Court took the case. It would have been a very different film if it had just been about the trial, but the fact that it was going to the Supreme Court, we knew there would be an ending, whether it was happy or sad. Fortunately, it went one way, but we were totally prepared to make the alternate version, which I think as an educational tool would be just as important.

Did you have doubts about the sincerity of Ted Olson, given his history -- about his commitment to the case and to the cause?

White: I think we did at the beginning, and we didn’t know Ted when we began this film. We had never met him. Both Ben and I are both fairly political people or politically knowledgeable people, so we were well aware of who he was. And so I think we were both pretty wary of him at first and whether, whether it would be sincere and whether he really was out to find out everything. People thought he was a mole, as some people did, or that he was out to sabotage the case. I don’t think we’re conspiracy theorists like that, but we thought maybe he was doing this more for the credit, or more for the win, than for the actual cause.

And it was very, very soon after meeting him, after maybe one or two [meetings] with him, where I never doubted his sincerity again. People who are close to Ted will say that they don’t ever remember Ted ever being on the opposite side of this issue. I mean, this goes back to the '60s, you know, when everyone was on the opposite side of the issue, so they never remembered him being against gay marriage. We always joked that we’ve never been hugged more than by Ted Olson, even more than our own mom. He’s just such a warm, kind person, and he passionately believes in the rights of gays and lesbians to marry.

You know, I think, when this case started, the only prominent Republican in favor of gay marriage was Dick Cheney. And now it’s pretty normal that Republicans are coming out in favor of it. And I think Ted Olson probably deserves a lot of credit for that sort of seismic shift on that side of the political aisle.

Did it bother you that cameras aren't allowed in the Supreme Court? 

White: As filmmakers, you always want access to as much footage as possible. That’s just sort of selfish, you know? For selfish reasons, you want to be able to show your audience as much as possible. Obviously, the exception is that there have never been cameras in the Supreme Court, and we had to work around that. Thank God there were audio recordings. And we were in the courtroom for the federal trial, the first trial, and I think there was definitely a value that is lost of having been in the courtroom where you feel emotions of people testifying or you watch experts testifying get cross-examined that can’t come across on the written page for an audio recording. And Ben and I had to arrange that firsthand and we had to edit around it in the film. I think it would definitely be of value to the American people if that footage were available one day. Who knows if that’ll ever happen.

Daniel D'Addario

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