The fight to overturn Proposition 8 in California

“The Case Against 8” is an HBO documentary that takes an in-depth look at the federal lawsuit to overturn California Proposition 8 banning same-sex marriages. Five years in the making, the film shows the behind-the-scenes workings of a legal team dedicated to restoring the right to marriage for all Californians.

A behind-the-scenes view of the fight against California Proposition 8 is shown in "The Case Against 8." (Credit: Flixster)

A behind-the-scenes view of the fight against California Proposition 8 is shown in “The Case Against 8.” (Credit: Flixster)

Currently running on HBO, “The Case Against 8” has won the 2014 Sundance Film Festival Directing Award and the South by Southwest (SXSW) Audience award since its opening on June 6, 2014.

California Proposition 8

In May 2008 the California Supreme Court legalized same-sex marriage in California. The backlash was swift and fierce. By November of 2008, opponents had placed Proposition 8 on the ballot. The proposition defined marriage as exclusively between a man and a woman. It passed with 52 percent of the vote resulting in an amendment to the state constitution banning marriage for same-sex couples.

Efforts to overturn the amendment began almost immediately beginning with the formation of the American Foundation for Equal Rights. In order to be successful in overturning California Proposition 8 a legal team of unparalleled skill would be required. As it happens, such a team was found.

Perry v. Schwarzenegger

Hollywood could not have written a better scenario. Ted Olson, lead counsel for the Republicans in the Bush v. Gore Supreme Court decision and solicitor general under President George W. Bush, came on board as the lead counsel. He persuaded his opposing counsel in the Bush v. Gore case, David Boies, to be his co-counsel.

Plaintiffs in the case were Sandy Stier and Kris Perry, a lesbian couple whose 2004 marriage had been overturned by the passage of California Proposition 8. Also listed as plaintiffs were Jeff Zarrillo and Paul Katami, a gay couple who wanted to start a family knowing that they would have the same legal protections as same-sex couples. The case Perry v. Schwarzenegger was filed in May 2009 in the northern district of California federal court.

Michael J. Klarman described the case in his 2013 book, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage.

According to Klarman, “Perry was the most visible federal court litigation involving gay marriage in 2009, but it was not the only one. In March, the Gay and Lesbian Advocates and Defenders brought suit in federal court in Boston against DOMA, and the Massachusetts attorney general filed a similar suit that summer.”

Stunning victory

HBO documentaries are always informative as well as entertaining. But “The Case Against 8” has the added feature of suspense and tension that comes with an important legal case. The documentary juxtaposes behind-the-scenes footage of the legal team at work and interviews with the plaintiffs and their families.

In an HBO.comInterview with Ben Cotner and Ryan White” directors of the film, discussion turned to the overall message of “The Case Against 8.”

“We see the end as quite bittersweet. In some ways, we’re hoping that people who live in the 31 states where same-sex marriage is still illegal can watch what happened with Proposition 8 and what those two couples did, and find inspiration. We’re seeing that all over now, and in every one of those states there are lawsuits pending,” White said.

Same sex marriage debate

In fact the aim of the film’s directors may have been achieved. In a July 1, 2014, post for, “New federal lawsuit challenges marriage ban in Colorado following 10th Circuit ruling,” Juliann DiNicola described a federal lawsuit that challenges Colorado’s ban on same-sex marriage.

According to DiNicola, “The plaintiffs are asking the state of Colorado to not only validate legal out of state marriages of same-sex couples, but to also allow county clerks in Colorado to issue marriage licenses to same-sex couples. A separate case was also heard last month, on June 16th, seeking the freedom to marry, and a judge is expected to issue a ruling regarding their decision soon.”

It seems that the tide has been turning in favor of legalizing same-sex marriages. In June 3013 the Supreme Court struck down a key part of the Defense of Marriage Act (DOMA). The result of their decision is that federal benefits afforded to heterosexual couples will now be available for same-sex couples in states that allow same-sex marriage.

You can read more about same sex marriage and other legal issues on Questia.

What do you think about the ruling on Proposition 8 and how it might affect laws in the rest of the U.S.? Tell us in the comments.

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