Hollywood has a special interest in the just-concluded federal trial over Proposition 8. The case’s impetus came from a group of frustrated industry activists and donors, anxious to write a new script in the fight for same-sex marriage.
In many ways they did: The proceedings garnered national attention, but the dramatic ingredients reinforced its importance — moments of personal emotion and flashes of eloquence, interspersed with humor, usually coming from U.S. District Court Chief Judge Vaughn Walker, a folksy fellow with a cranky wit. There was also a third-act twist: A couple of weeks after testimony concluded, the San Francisco Chronicle wrote a story that outed him while posing the question of whether the judge’s sexual orientation is relevant.
The only problem as this case played out was that the Supreme Court didn’t play along. Even as a coalition of media entities argued that its historic interest was on par with the Scopes trial, the high court put the kibosh on any notion of televising the proceedings.
Ted Olson, representing the plaintiffs in the case along with David Boies, noted that fact shortly after closing arguments wrapped up, telling a crowd of journalists at a press conference that “if there was ever a trial in the history of America that the American people should have seen, it is this trial.”
Short of that, they’ve done their best to maximize exposure. Political consultant Chad Griffin helped spearhead the case with the creation of the American Foundation for Equal Rights, with a board that includes Rob Reiner, producer Bruce Cohen and screenwriter Dustin Lance Black. Throughout, the foundation has been a one-stop shop for trying to get the case before the public through regular updates to journalists, posting of transcripts on its website and a sign-up for a text-message alert on the decision, whenever it comes.
Most of all, there was the odd coupling of Olson and Boies, famed litigators on opposite ends of Bush v. Gore. This pairing was ready made for national talkshow bookings and page-one features.
There’s also been the reenactments. Cohen and Black, who were present at court on Wednesday, helped create street theater exchanges between celebrities reciting memorable moments of the trial, with the excerpts posted on the Courage Campaign website. Two actors, John Ainsworth and John Ireland, cast an entire group of performers to do a line-by-line recreation of the trial for YouTube. On Wednesday, they trekked to the courthouse with a group of actors so they could see first hand how to restage the closing arguments, and even did a short performance before the proceedings started in an outdoor plaza. Clyde FT Small, playing Olson, at one point got mistaken for the real thing.
Yet there really is no substitute for the real thing, and that certainly was on display in the closing arguments, which were kind of a mini-replay of the trial itself.
Olson invoked Martin Luther King’s “Letter From a Birmingham Jail” as he put the trial in the context of past civil rights battles, most famously Brown v. Board of Education and Loving v. Virginia. To enforce the point that there’s a social “stigma” associated with not being allowed to marry, he ran video trial excerpts of the plaintiff’s testimony, including a segment in which Kristin Perry says of her inability to marry her partner Sandy Stier, “There’s something so humiliating about everyone knowing you want to make that decision but you don’t get to.”
It proved to be the most emotional part of the day, and as he went on with his closing argument, Olson was more strident in tone, leaning to the side of his podium as if to prop himself up with the weight of the argument that gays and lesbians seeking marriage face a system of separate but equal. “No one aspires as a child to grow up and have a domestic partnership,” he said.
Olson’s counterpart, Charles Cooper, defending Prop. 8, also was full of conviction as he closed with a central message that the rational basis for restricting marriage was its historic purpose: channeling “natural procreative conduct.” As such, he argued, the burden was on the plaintiffs to prove otherwise.
But Cooper, a respected litigator with a courtly Southern accent, appeared flustered and flummoxed at times, certainly in contrast to Olson. As Walker posed contrarian queries, Cooper wiped his brow or sipped from a water bottle, complaining of losing his voice.
To proponents, style and delivery, and certainly out-of-courtroom publicity, are beside the point. “The political process, the legislative process, is where this debate takes place,” Andy Pugno, one of the attorneys for the proponents, said afterward.
The media coalition has yet to act on whether to seek a release of trial video, but the proceedings could live on in other ways. Black says a screenplay is “not out of the question.”
It’s perilous to predict how Walker will rule, and on what footing he’ll even reject or uphold Prop. 8. But by staging the trial, he’s triggered a new theater for the debate, elevating the case to a question of constitutional rights. With apologies to Gavin Newsom, he’s done so whether he likes it or not.