Filmmakers Ben Cotner and Ryan White are seated in a conference room far too big for just the two of them. Politely relaxing on a pair of chairs, it’s a huge difference for them considering they spent the past few years of their lives documenting media scrums and various meetings in similarly sized rooms that were normally crammed to the rafters with press, protestors, and curious onlookers while they examined one of the highest profile trials of the decades.
In their film The Case Against 8 (opening at the Bloor Hot Docs Cinema tomorrow), White (Good Ol’ Freda) and Cotner (a first time filmmaker but former acquisitions and production overseer at Paramount Pictures and Open Road Films) follow the push to repeal California’s controversial ban on gay marriage, Proposition 8. Over the course of four years, numerous starts and stops, and even watching victory after victory taken away from the cases’ successful plaintiffs, White and Cotner chronicle just how hard it is to overturn a law that no one openly wants to say is about suppressing human rights and looking into semantic arguments more than legal ones. The story gets told from the point of view of not only the two California couples who want to have their marriages legally recognized, but through the unlikely pairing of conservative lawyer and icon Ted Olsen (he who famously got Bush elected after the Florida recount) and left wing counsel David Boise (the man who opposed Olsen).
Cotner and White chatted with us while they were in town for Hot Docs about crafting a film and a case around semantic arguments, the pressures and stress faced by all those involved, and how they spent their downtime between various hearings in the case across four years.
Dork Shelf: One of that really stands out about the film is that you guys are actively delving not only into the personal lives of these people who are fighting for their rights, but also into the incredibly complex mechanics of how laws can be over turned and what a long and arduous process that can be. When exactly did you guys come into the story as a whole? Did you know immediately as soon as Prop 8 was passed that there would be a larger story here and that people were going to fight it or was it more a matter of figuring out first who was going to take up the fight?
Ben Cotner: That’s a really great point, because for us while this was going on every night we would see this all over the news and on the front page of every newspaper we came across, so we were really first comparing it and seeing what the public thought of things first, and that was really interesting for us. I think as it came time to put together a film, one of our main goals was to show the inside story of what was happening that was more in depth than what was initially being show in the mainstream media. That was always a huge component for us and the complexity of bringing this to the courts is really integral to that experience.
In the beginning we had heard about the case before it had gone before the courts and before all the claimaints had come on board. We were really there from the beginning when we showed up for their first meeting. We showed up and talked to some of the potential plaintiffs about filming them and letting them know what was going on. This was just the beginnings of the trial at this point, so it was great to get to know them and have them start to trust us and get to know us and get used to having us around. By the time the trial came together they were really used to it.
DS: I wanted to talk to you guys about the opening scene of the film, which is former Bush advisor and one of the attorneys for these couples Ted Olson preparing by way of a mock trial where he’s getting pillared with questions that he’ll end up facing, but that seem like some of the meanest and most leading questions possible designed to trip people up. It really outlines everything to come, but what it really does in that scene is how the argument designed to keep this law in place is purely semantic because no one who wants to keep the law wants to appear openly bigoted. Everything that’s being said is very nitpicky and everything throughout the trial hinges on every word being said. Outside of talking to the people involved, how do you create a film around a case that’s essentially a lot of semantic arguments?
Ryan White: That’s actually a really good question because it does tie into that opening, and it’s something we almost never get asked about. (laughs) In that opening, that’s a rare thing to see because no one ever gets extended the opportunity to film those. Those are very private despite it being a rehearsal before heading to the Supreme Court. Having that in the film was a huge get for us.
We had the idea of throwing the audience into the gauntlet right away and knowing what the stakes are. You just enter that room and it’s a rapid fire session. Questions are hurled at you and Ted can sort of pivot and try to answer a question, but as soon as he tries or gets halfway through a sentence he’s getting cut off and asked another question.
But yes, so much of this is about semantics and what words mean, and that became such a large part of the trial and our conversations throughout the trial. When we were titling the film, we were actually thinking about that, too. One of the arguments in California was if gay people in the state should have access to “domestic partnerships,” which virtually affords all of the rights that married people would have, so why do we have to call it something else and not “marriage?” The real question became if that was to be a word that was only to be reserved for straight people. It all came down to the meaning of a word, and that’s where the testimonies of the people involved and the work of the legal team comes specifically into play.
I remember after the trial I heard (plaintiffs) Paul (Katami) & Jeff (Zarrillo) say that it felt so different to not have access to that one word, but to be able to have access to so many other words. “Domestic parntnership” just sounds different to say to someone than “we’re legally married.”
BC: I think also that the idea of entering these words into the record and literally showing the transcripts from the hearing shows that these people were willing to go into a court and speak these words, but the argument in the long run started become this abstract idea of the harms that marriages can do. It wasn’t necessarily so much about the facts, but about a lot of impossible kinds of intangibles. It became about, as you said, the definitions and the values we place on words. It was about building the record and using those words to change it.
DS: It’s interesting how someone can hide bigotry behind language. There’s a moment in those transcripts where the defense uses twisted definitions to try and fluster and anger Paul and Jeff into saying things they don’t mean. No one really seems like they want to come right out and say they’re against gay marriage because they have a moral opposition to it, but they will try to talk around their most obvious point.
RW: Absolutely, especially in a courtroom when you aren’t allowed to talk about tangibles and this notion of “traditional marriage.” In there you have to make legal arguments with a basis in fact, so you have to resort to those tactics.
The lawyers for the other side are really well respected. They aren’t goofballs. They’re great lawyers. We tried very carefully in our film to edit them in a way that was respectful. They were bringing forward some legal arguments that you could use in a courtroom, but it was interesting to see the kind of rhetoric that they used and the language that can be brought into that room.
There’s a difference between what you can say in a campaign and what you can say in a courtroom.
DS: Going back to that opening, I think for people who don’t know who Ted Olsen is or have seen him in action, you would see this man who’s getting destroyed, and as the film goes on there’s a real message about how all of these very smart people from different backgrounds have to work so hard to accomplish this task. Ted Olsen is nothing compared to the people asking him questions, when in reality Olsen’s involvement was huge. Was there a conscious decision to put that at the beginning to kind of introduce people to Ted a little bit before you go into his past? You’re certainly casting him in a different light than people would have a decade ago, and there’s something really interesting about how the plaintiffs have to spend more time defending Ted’s hiring to the LGBT community than Ted has to spend defending his involvement to his fellow lawyers on the right.
BC: Absolutley, and I think that we wanted to demonstrate the pressure that he was under right away. This was never going to be a cakewalk even for someone like Ted Olsen, who you would think was unflappable with how he handled the Florida recount. It was a process that required a lot of hard work and a lot of people working with him. He has a huge team working under him. We wanted to show the magnitude of how big this case was and all of these things that were happening.
It’s also a great way to introduce right away a lot of the fundamental arguments that were at the top of the case. We wanted to do that right from the beginning before we went back and met the plaintiffs and looked at how it all got started. It was such a complicated case, and it was hard for us to get into the film and explain the issues in a way that wasn’t boring. (laughs) That opening scene and Ted’s involvement and past really opened the way for that.
DS: Did you find in talking about the case that having these two high profile legal figures heading up the plaintiffs helped to gain more exposure for the issue? It feels like the kind of thing that if Ted and his former rival David Boies hadn’t been involved, it wouldn’t have been streamed or recorded in the state of California.
RW: Hmmmmm. I don’t know. Obviously it was a big enough deal that these guys would join forces that they got placed on the covers of Newsweek and Time Magazine. These were people who were all over the press, so I think that definitely perked people’s ears up and made them pay attention to the seriousness of the issue. Before that people hadn’t really, and obviously with Ted Olsen being such a conservative icon that threw things upside down and opened the specifics of the issue up to people who previously hadn’t given it much thought. I think they did that. They definitely had a huge impact on the awareness of where people stood on the issue. There was a huge difference between when Ted and David got involved than there was at the start of 2003.
DS: Do you think that because you guys could kind of align yourselves with Ted and David that you guys were able to get more access to things that you might have otherwise been afforded, like getting to shoot things that no one ever usually gets to film?
BC: Interesting. We’ve never been asked that before. But yeah, I think so.
RW: (laughs) They certainly have a lot of power.
BC: I really think that especially because Ted was kind of an outsider to the cause when he came on board, other people who were more entrenched in the issue started opening up their carefully crafted plans that they had been working on for a long time. Him coming into the fold and looking for transparency and wanting to help make the case an open dialogue really allowed us to be a bit more free and open with regards to the filming and getting more access.
RW: We found when Ted came on that other lawyers were also a lot more willing to talk to us, as well. And Ted and David are already so successful as lawyers that they’re comfortable with this. I think we only had to really have discussions twice about whether or not we could follow them. David and Ted were both in agreement that what we were doing was right because people would see an open and unbiased record of this. People, even those against them, have such a trust in David and Ted because they’re just so good at their jobs. That allowed us a lot more access.
DS: Ted also seems to be indicative of a growing branch of conservatives who can now start to openly accept gay marriage. It’s strange because in a way from a conservative standpoint, legalizing gay marriage makes a lot of sense from both a financial standpoint and from the point of view where they wouldn’t want the government making these kinds of decisions.
BC: Yeah, and I think the big reveal is that there are a lot of people who weren’t comfortable speaking out in favour of it before. Marriage isn’t really a particularly political issue at all, but it took this kind of a figure to make people realize that. The idea that the government shouldn’t regulate your personal relationships is one of the cornerstones of conservative ideology to begin with. Left and right can really agree with that, and Ted kind of took the pressure off of conservatives to come forward and reaffirm that part of their beliefs.
RW: And it also put pressure on Democrats who WEREN’T willing to come forward. In 2008 it wasn’t a done deal that Democrats were all for gay marriage. Most of them weren’t. It also put the pressure on people who were on the side who were supposed to be for equal rights. If big conservatives were coming out in favour of it, then I guess it became okay to be in favour of it all of a sudden.
DS: It seems very cathartic for the plaintiffs to be able to talk through these problems and frustrations. I know if I was going through a major court battle like that, I would want to have someone to share the story with. It’s a very stressful situation.
RW: Yeah, I certainly wouldn’t have been able to go through with it, but we also did those interviews at the end of the filming process. Most of the time during the case we really just followed them and never did any kind of “in the moment” debriefing. We weren’t asking them to reflect on the experience or interrupting a lot. We didn’t want to make that type of film, and I think the way the film is edited really brings together a pressure packed four years that we were following them before bringing them into a room for the first time to talk about it with us, and I think that felt like a real release for them to get to talk about what happened. We could have included so much other great stuff that we talked about, too, but we just didn’t have the time. How do you really condense four years of that level of stress and intricacy from a human perspective and put that into less than a couple of hours? That was a huge question when it came to editing the film.
BC: Another thing was that prior to us doing those interviews, and this is what we were talking about earlier, the plaintiffs were always told to stick to talking points because of the nature of the dialogue. They were always under pressure to say things in a perfect way all the time. It was one of the first times they were actually able to open up to us on camera even though they had trusted us before to follow them throughout our filming. It was the first time they were ever able to say how they really felt. They for the first time was able to just be honest about their feelings and not just about the specifics of the case.
RW: I remember specifically when we were going into those interviews we would have to say that we didn’t want any talking points…
BC: And we would call them on it!
RW: Yeah, sometimes we would catch them sort of going back to their talking points and stop them. Talking points are great for a lawsuit, but not when you’re trying to make a documentary.
BC: It’s a bit of a learned behaviour that goes against our basic natural desires, but for a court case where people are openly trying to break you, there has to be the kind of security that those points bring. It’s stifling, too, though.
DS: You filmed over the course of four years, but this was a case where there were large periods of downtime in waiting between the case going to different branches of the courts. What’s it like going through and having to have moments where you don’t have very much you can do but sit back and wait?
BC: Well, we kept our crew very small, so it was really just Ryan and I shooting this ourselves. During the trials we had one other person shooting with us. All those other times it was really important for us we just had to be ready to drop everything at a moment’s notice for four straight years to go and film something, and that was really where having two directors came in handy. There was also the fact that Ryan was making other films at the same time and I had a full time job, so it’s not like the gaps were a lot of down time for us.
RW: (laughs) I seriously made entire films that were made during the breaks of this one that were completed and released before this was even finished. But it’s a really a frustrating process following around a court case, and I wouldn’t recommend it to anyone except those with the greatest amount of patience. (laughs) It’s not compact and wrapped up in a pretty box. It’s so unpredictable, and it takes a long time. It’s frustrating for you and it makes you understand the frustration of the people actually involved in the trial. You watch them win a trial in January of 2010 and three years later they still aren’t married despite having won. You really understand how that can affect people lives. People are born in that kind of time. People have family members pass away who will never get to go to their wedding. These are people who work so hard that you begin to wonder if this thing will ever actually happen, and you can feel that as a filmmaker, as well.
BC: That was a huge struggle for us to watch them go through two different courts and have two different victories, and it was hard to shape the film because you really want that first victory to be big because they finally won, and then to suddenly get pushed back is hard. “Desperate times call for desperate measures” seemed to be the operating strategy for the other side whenever a victory came down, which led to all the delays, and that’s when the real frustration sets in. The filming was almost harder at times than the waiting. Our inconvenience was a lot less than what these people experienced in fighting the case.