Same-sex marriage on trial


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 when he recalls Paul's testimony that 'he loves me more than he loves himself': 'I realised that I felt the same way.'

The documentary is unashamedly emotive, and rightly so. But it appeals to the head, too. A great boon for the case against Prop 8 was its alliance of lawyers David Boies, a liberal, and Theodore Olson, a conservative. Boies and Olson had opposed each other in Bush v. Gore, the case that effectively decided the 2000 US Presidential Election. Their union against Prop 8 helps allay the perception that this was a partisan issue.

Olson argues that marriage is a fundamentally conservative institution that would be strengthened by extending it to same-sex couples. Boies, a deft operator, persuades several supporters of Prop 8 to abandon their position by arguing that the children of same-sex couples will benefit from the stability of marriage. Another supporter is disappeared from the list of defendants after Boies unearths veins of hate and prejudice beneath his rhetoric.

It's worth noting that one of the film's directors, Reiner, is a board member of the American Foundation for Equal Rights (AFER), the non-profit organisation that was established to support the plaintiffs in their lawsuit against Prop 8. In fact AFER effectively stage-managed this action, right down to enlisting Boies and Olson and vetting the plaintiffs. As such it is plain that the film aspires to advocacy rather than objectivity.

That said, the emotional impact of the stories of Kris and Sandra, Paul and Jeffrey is immense. Few could deny that these 'committed, faithful, long-term relationships' are 'natural, complex and mystical', and that they ought to be 'able to love and support each other in sickness and in health, until death they do part'. Why, then, deny them and others like them the respect and dignity that would come only from full inclusion into the institution of marriage?

Tim KroenertTim Kroenert is assistant editor of Eureka Street.

Topic tags: The Case Against 8, same sex marriage, Ben Cotner, Rob Reiner, Ryan White, Ted Olson, David Boies, Jeffrey



submit a comment

Existing comments

To me, Mr Kroenert, Fr Frank Brennan has always upheld the distinction between civil and sacramental marriage. His change as I perceive it is purely one of terminology, namely the removal of the term "de facto" thus removing the perceived discriminatory use of such a descriptor and replacing it with the term "marriage" (which to some mistaken beings might seem to give it equal status with marriage as understood by Christianity) and thus appease the homosexual community.

john frawley | 16 October 2014  

There is no such "homosexual community" to appease - just as there is no "heterosexual community." There is only humanity and there is no hierarchy of status in the eyes of God. When you talk about "Christianity", you are really talking about "religious politics. Just as ISIL doesn't not represent Islam - the Roman curia does not represent Christianity.

AURELIUS | 16 October 2014  

Aurelius,Scripture and Magisterium represent God on moral issues pertaining to SSM. THE latter stands condemned by God versus Sacrament of Holy Matrimony!

Father John George | 03 November 2014  

Similar Articles

Australian history through the eyes of a dirt digger

  • Barry Gittins and Jen Vuk
  • 24 October 2014

Satirist David Hunt's best-selling Girt The Unauthorised History of Australia prompted Joe Hockey to offer him a job as speech writer. There’s plenty of dirt. Australia was the place to be, writes Hunt, 'unless you were black. Or a woman. Or gay. Or suspected of being Irish. Or even worse, all of the above'.


Shooting hoops for the health of it

  • Ben O'Mara
  • 15 October 2014

At 6:30 am I pull on my compression tights, lace up my black and bubble gum blue boots, throw on a crumpled, old t-shirt, and join the early risers to play basketball at my local sports and aquatic centre. This twice weekly ritual has helped me realise that sport heals when I play it on my own terms.



Subscribe for more stories like this.

Free sign-up