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Same-sex marriage on trial

  • 16 October 2014

The Case Against 8 (PG). Directors: Ben Cotner, Rob Reiner,  Ryan White. Starring: Ted Olson, David Boies, Jeffrey Zarillo, Paul Katami, Kristin Perry, Sandra Stier. 113 minutes

Last year Frank Brennan, the human rights lawyer, Jesuit, and Eureka Street columnist, had a change of heart. He had long argued for civil unions as the best way to esteem same sex couples in Australian society, without extending to them the fuller symbolic and legal recognition of marriage. But following a civilised exchange with Senator Penny Wong that was cut from the broadcast of one SBS Insight program, he revealed a new stance.

Noting that Wong's homosexuality was 'as natural, complex and mystical' as his own heterosexuality, he concluded that 'it would be just and a service to the common good' for the State to recognise 'committed, faithful, long-term relationships between gay couples deserving dignity, being able to love and support each other in sickness and in health, until death they do part'.

To achieve this, he said, we can 'no longer draw a line between civil unions and same sex marriage', though he maintains a distinction between a civil marriage and a sacramental marriage.

Brennan was referring specifically to legislation in Australia, however his words resonate with the new American documentary The Case Against 8, which documents the fate of same-sex marriage laws in California.

Same-sex marriage had been briefly legal in the state from early 2008, only to be shut down by a popular vote in favour of Proposition 8, which defined marriage as being between a man and a woman. Opponents of Prop 8 argued that it was unconstitutional. Their opposition was eventually upheld, but only after five years of legal wrangling.

The human faces of this battle were ordinary citizens who felt their dignity and rights had been trampled. Mothers-of-four Kris and Sandra had wed before a contingent of family and friends, only to be later advised by post that their marriage was void. Paul and Jeffrey refused to embrace an alternative form of legal recognition of their relationship, believing that to do so would be to acquiesce to the perception that they are 'second-class citizens'.

It is impossible not to be caught up in the emotional journey these four plaintiffs undergo over the course of five years. Cameras were banned from the initial hearing in the District Court in 2010, but Kris, Sandra, Paul and Jeffrey read for the documentarians from the court transcriptss. Jeffrey breaks down