By Matt Brennan | Thompson on Hollywood! October 9, 2014 at 7:22PM
The charged opening sequence of "The Case Against 8" (HBO, June 23) catches former Solicitor General Ted Olson in the thick of a dress rehearsal. With the curtain call of oral arguments before the Supreme Court looming, his fellow legal eagles pepper him with questions the justices might ask; the montage quickens with the soundtrack's strings; and the scene culminates in Olson's rousing final remarks. "If this is unconstitutional, it's unconstitutional today," he says of Proposition 8, the gay marriage ban California voters passed in 2008. "That's why we have a Constitution, that's why we have a Fourteenth Amendment, and that's why you have the job that you do."
As filmmaker Ryan White explains, this unaccountably exciting piece of legal wrangling became part of the final product by dint of documentary serendipity.
"Ted didn't want us to film it," White, who co-directed and produced the film with ex-acquisition executive Ben Cotner, said with a chuckle. "Then he said, 'You can come in for ten minutes' -- it lasts for an hour -- 'then I need you to leave quietly.' It would have been more distracting for us to leave, because we had two cameras on different sides and everyone was in the zone, so we just didn't, and he never looked up and said, 'Leave,' so he let us film the whole thing. Now he says he's so glad he did, because he loves that scene."
When I interviewed White recently, it quickly became clear that both good fortune and hard work brought "The Case Against 8" to fruition. The result is a humane, richly detailed portrait of what might one day be regarded among the most consequential court cases of our time, an intimate history of an unprecedented wave of political change for LGBT Americans. From the beginning, though, nothing was assured, least of all the eventual outcome.
"Ted and David [Boies, Olson's co-counsel on the case]... were open to the idea of us filming, which we were surprised by, because I think it goes against every bone in a lawyer's body to allow a documentary crew to follow them this closely," White said. "I don't think they realized how closely we were going to follow them from day one, and no one knew it was going to take five years, so no one knew that we would have spent this amount of time together by the end."
White and Cotner met at the Sundance Film Festival in January, 2009 -- just two months after the passage of Proposition 8, and shortly before the federal lawsuit challenging the ban was filed. Cotner, an executive with extensive experience in acquisition and production at Paramount Pictures and Open Road Films, had never before shot a movie when he received access to the legal proceedings from the American Foundation for Equal Rights (AFER). He approached White about documenting the first stages of the case, but it was only after the pair met plaintiffs Kris Perry, Sandy Stier, Paul Katami, and Jeff Zarrillo that the film's delicate balance of case law and character study came into focus.
"I think if you had asked us [in 2009], we would have thought it was going to be a much more of a legal procedural film. And Ben and I are both legal nerds, so that didn't disappoint us," White told me. "But we fell in love with the plaintiffs. I mean, it was perfect casting for our film. They cast them for the lawsuit, but right when we met them, it was like, these people, they're so articulate, all four of them, which is what you want in a documentary."