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HBO film traces legal battle for same-sex marriage

By David Wiegand
San Francisco Chronicle

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    ‘The Case Against 8’

    9 p.m. Monday on HBO



Same-sex marriage isn’t home free, but the walls have teetered enough to suggest it may be only a matter of time. Does that make the new documentary “The Case Against 8” feel like ancient history? Far from it, as this week’s March for Marriage in Washington reminds us.

Looking back on the legal battle that resulted in the U.S. Supreme Court decision on California’s Proposition 8 banning same-sex marriage couldn’t be more timely. It also makes for a riveting film. Even knowing the outcome, watching “8,” premiering Monday on HBO, is like watching a well-scripted legal thriller.

Filmmakers Ben Cotner and Ryan White were granted extraordinary access to war rooms in San Francisco, Los Angeles and Washington, D.C., as two seemingly ill-matched legal titans, conservative Ted Olson and liberal David Boies, led the charge against Prop. 8 through the court system.

As many may know, the two men famously opposed each other in Bush vs. Gore in 2000, the Supreme Court case that decided that year’s presidential election. As Boies tells it, when you’re involved in a high-profile case, your family and friends get sick of hearing about it, so sometimes the only person you can talk to is the opposing counsel. That was one reason Olson and Boies became friends. Another was genuine admiration for the other’s legal acumen.

Soon after California voters approved Prop. 8 with 52 percent of the vote, political consultants Kristina Schake and Chad Griffin founded the American Foundation for Equal Rights to find a way to overturn it.

Some members of the LGBT community thought it was too soon to challenge the proposition. They argued that public opinion was still against same-sex marriage and that a new battle, coming so soon after the last one, would irritate supporters of same-sex marriage. But if the battle was led by someone with impeccable conservative credentials, Schake and Griffin believed they had a chance.

They went to Olson, who had been solicitor general in the George W. Bush administration, because he supported same-sex marriage – not as a departure from conservatism but, rather, because of that ideology. “Marriage is a conservative value,” Olson famously pronounced.

Once Olson was on board, who better to partner with him than his friend and former adversary David Boies, a masterful legal technician? Together, they were the 21st century legal dream team.

One of the many reasons “The Case Against 8” is such a great film is that the filmmakers show us that regardless of headlines, protests and other expressions of public opinion, for Olson, Boies and their team, it was all about the law. Outside the war rooms and court rooms, members of the gay community were wary of Olson’s participation, while some conservatives believed he was a traitor to their cause. Same-sex marriage was becoming even more divisive as the case took shape and doctrinaire purists lined up on both sides of the issue.

“The Case Against 8” is precise in its title: The filmmakers do not pretend that this is an objective look at the two sides in the case.

At the same time, it is not a cinematic victory lap, either. Public opinion has changed on same-sex marriage, same-sex marriage bans are being overturned state by state, and no, the issue isn’t as politically divisive as it was only a few years ago because many Republicans see little political value in pushing it.

Regardless of personal opinion about same-sex unions, the nation is moving slowly toward a position of accommodation at least, much as David Blankenhorn did recanting his earlier position against Proposition 8.

“Surely we must live together with some degree of mutual acceptance,” he wrote in a New York Times column, “even if doing so involves compromise.”

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