‘The Case Against 8’: How the fight for LGBT marriage rights in California was won

Olivier Knox, Karen Travers, Richard Coolidge, and Jordyn Phelps
Power Players

Top Line

The movement to legalize gay marriage has gained momentum nationwide in a way almost unthinkable just a few years ago — but one of its heroes says there was no feeling of inevitability about her Supreme Court victory that toppled California's Proposition 8.

"We didn't know we were going to win until we won," former plaintiff Kris Perry told "Top Line" during a discussion of a new HBO documentary that gives viewers a front-row seat for her five-year legal battle.

Perry and a co-director of “The Case Against 8,” Ben Cotner, talked about the moment when the nation's highest court effectively declared unconstitutional Prop. 8, a 2008 ballot initiative that said only heterosexual marriages would be recognized in California.

“So, we’re sitting in the courtroom waiting and waiting for the rulings to be read and, actually, the case was the last case ruled on that day, so it was down to the wire,” Perry said. “And Chief Justice Roberts was reading the ruling, which gave us all a pause, but it turned out they went 5-4 in our favor. So we didn't really know until the very last day, the very last ruling.”

When Cotner and co-director Ryan White set out to make a documentary on the legal case against Prop. 8, Cotner said, they didn’t know the project would ultimately bring them all the way to the steps of the Supreme Court.

What hooked them initially was the unusual team of super-lawyers who came together to argue the case: Ted Olson and David Boies. The two lawyers famously argued against each other in the Supreme Court case, Bush v. Gore, that ultimately decided the 2000 presidential election - Olson for Bush and Boies for Gore.

“When we found out that Ted Olson and David Boies, this very unlikely pairing, were going to be taking this gay marriage lawsuit, [we thought], ‘That's a very good hook for a film,’” Cotner said. “And we were lucky enough that Kris and Sandy, Paul and Jeff, and Ted and David were willing to put up with us throughout this whole thing; and we sort of followed them around for five years.”

Working with the backing of the American Foundation for Equal Rights, Perry said, the Olson- Boies dream team helped to “neutralize” the hyper-political atmosphere surrounding the case.

“The two them stepping out as a bipartisan team, and … Ted Olson stepping out from the conservative side of the spectrum, saying that it's a conservative value and that being married is completely consistent with what conservatives believe, it just moved the conversation from the left to the center – and that felt like a winning team,” Perry said.

Now enjoying her own newlywed status in California, Perry said she is confident that gay marriage will one day be a protected legal right in all 50 states; but she stressed that the struggle for equality is still ongoing.

“What's really troubling is in those 30-some-odd states that still have bans, is they are living in a country where some of us get to be married, and some of us get to have access to federal benefits, of which there are more than 1,000 - but in states where they don't have access, they can't even take advantage of the repeal of DOMA,” she said. “And that's [a] significant problem that we should all, no matter what our sexual orientation, should be very concerned about.”

To hear more about the documentary, which premieres on HBO on June 23, check out this episode of “Top Line.”

ABC News’ Alexandra Dukakis, Gary Westphalen, Tom Thornton, Nick Greiner and Shari Thomas contributed to this episode.