Case Against 8 Briefing Notes

Case Against 8 offers us a snapshot of one important mo-ment in the history of the struggle for marriage equality for same-sex couples.
Its focus is very specific: to provide an in-depth and be-hind-the scenes record of the legal strategy deployed by the American Foundation for Equal Rights (an organization founded specifically for this purpose) to challenge the constitutionality of the Proposition 8 amendment to the California state constitution.
Playing a central role are the four plaintiffs whose testimonies and reflections make clear the significance of same-sex marriage to their lives and justify its legitimacy as an American civil rights issue.
Two coincidences:
In 2008, on the same day that over sixty percent of Californians voted for Barack Obama as the first African-American President, fifty-two percent supported the anti-same-sex marriage Proposition 8.
On June 28th 2013, the Supreme Court made two important rulings. They ruled that the proponents of Proposition 8 had ‘no standing’ with the result that their appeal against lower courts’ decisions on its unconstitutionality failed. The Court also ruled that the Defence of Marriage Act (DOMA) which restricted federal interpretations of marriage and spouses to heterosexual unions was unconstitutional.
Changing attitudes and complex alliances
In 2001 Pew Research Polling found that Americans op-posed same-sex marriage by 57% to 35%. By 2015, same-sex marriage was supported by a majority of 57% to 39% – a very marked change.
Prior to 2004, no same-sex marriages were performed in any jurisdiction in the USA; now, such marriages are legal in 37 states.
One of the surprising, if not disconcerting, aspects of the Case Against 8 was the role of Ted Olson,

Bush’s former Solicitor General. Once he and liberal Democrat David Boies fought on opposite sides in the Bush v Gore Su-preme Court case over the 2000 election results in Florida. Now they were co-counsels in support of same-sex mar-riage. Support of organizations such as the libertarian Koch-funded Cato Institute also signals the erosion of ‘conservative unity’ on this issue.
The film alludes to the opposition within some of the LGBT community to the strategy deployed: that it was too soon; that mounting a case in federal courts on the grounds chosen could jeopardise progress; that it was ‘detached’ from other LGBT campaigns and activism : and that the role of Olson was problematic.

Some have also argued that the film neglects the historical context, and the moorings in LGBT activism and that it fails to provide a comprehensive portrayal of the scale and types of opposition that LGBT civil rights still face. How-ever, in the cross-examination of the arguments opposing same-sex marriage, the film does dissect the proponents’ ‘evidence’ that same-sex marriage would cause ‘harm’ – whether to marriage as an institution or to children. Some of the most absorbing moments in the film are when opponents are driven to acknowledge that enabling same-sex marriage would strengthen commitments, enhance the lives of children of these partnerships and realize American values.
In fact, the Ninth circuit court ruled that ‘Proposition 8 serves no purpose and has no effect other than to lessen the status and dignity of gays and lesbians in California and officially to reclassify their relationships and families as inferior to those of opposite sex couples”. and thereby unconstitutional.
We now await the Supreme Court decision on whether state bans of same-sex marriage can remain in place