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A Wonderful New Theater Inaugurated In Side-Splitting Style: A MIDSUMMER NIGHT’S DREAM at Chesapeake Shakespeare Company’s New Home

Posted on BroadwayWorld.com September 22, 2014

Having just seen the Chesapeake Shakespeare Company’s premiere production in its new theater, A Midsummer Night’s Dream, it’s hard for me to stop saying wow. Wow to the theater, a three-tier structure that echoes the layout of Shakespeare’s own Globe (albeit with the modern convenience of a roof – and some others including two bars and ergonomic seating that assures there is no standing for today’s groundlings). Wow to the play, one of Shakespeare’s funniest. Wow to the acting, the direction, the staging, the lighting. The audience is assured of over two hours of being in stitches.

The creation of the theater, a stunning addition to downtown Baltimore remodeled from the historic old Mercantile Safe-Deposit & Trust headquarters that survived the great Baltimore fire, would be a heavy lift by itself. The play is a heavy lift too; indeed the play was an unprecedentedly heavy lift for Shakespeare himself, who by 1595 had never done a comedy that combined nearly as much disparate material as we find here: a high-born and courtly couple, two pairs of genteel but flighty young lovers, a crew of “rude mechanicals” out to perform a play for a royal wedding, and a fairy court. Weaving all these kinds of characters who inhabit very separate worlds into a single plot required genius, which fortunately Shakespeare was able to supply.

Chesapeake Shakespeare Company does its own kind of weaving with this material, taking its patented blend of ingenious stage business (for instance doing amazing things with a bottle of champagne in the early going or staging a catfight between two women with one of them suspended in air), modern music, and subtle up-to-date cultural references accomplished without altering Shakespeare’s lines, and music from all kinds of sources, and putting it at the service of a solid reading of Shakespeare’s delirious fun.

The play calls for a large cast (21 speaking parts), and CSC fills the roles without doubling, a delightful change from what is expected today, albeit one which makes it impossible to praise every performance. But certainly it would be wrong not to mention the women in the two mix-and-match couples Hermia (Rachel Jacobs) and Helena (Audrey Bertaux), huge parts with endless comic emoting (and the aforementioned fighting), who stayed game through the whole affair; Gregory Burgess, whom I’ve mentioned at least twice before in these pages, at the top of his form if I may put it that way as Bottom (the weaver who thinks himself a great histrion but ends up an ass, literally); Bobby Heneberg as Francis Flute, the mechanical who presents a classical heroine in the play-within-the-play a bit like Divine presenting Edna Turnblad; Scott Alan Small (Oberon, king of the fairies) and Vince Eisenson (as Puck, his wingman), who together combine supernatural incompetence and elan; and Kathryn Elizabeth Kelly as Titania, a slinkily seductive queen of the fairies, who keeps a straight face while doting on a donkey, pictured above. I think one should also mention the fairies, including one or two wee ones, whose illuminated wings and crouching walks truly bespeak something uncanny and magical.

This commencement of CSC’s presence downtown makes it possible for CSC to plan a whole repertory season for the first time, including five more plays, some of them from other hands than Shakespeare’s, including Dickens, Chekov, and Wilde. Their arrival here is truly a cause for celebration.

Copyright (c) Jack L. B. Gohn, except for production photo

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Fresh Production, Unfresh Play: AMADEUS at Center Stage

Posted on BroadwayWorld.com September 22, 2014

It is extraordinary how differently various plays age. Some may seem like ephemera when you first see them as a child, and still speak strongly to audiences when you are old. Others, ones that seem sturdy, lasting theatrical achievements, grow stale in a generation. Center Stage, in a perfectly good revival of Peter Shaffer‘s 1979 hit Amadeus, has unexpectedly revealed that play to be of the second sort.

How could this be? Surely the mysteries of mediocrity and genius, as exemplified respectively by Shaffer’s antagonists Salieri and Mozart, are as intriguing now as ever. Surely the ancillary themes of patronage and celebrity exert as strong a pull. And, most emphatically, the role of divine providence, if divine providence there be, and the ins and outs of bargaining with God, if there is one, still hold the imagination. What has gone wrong?

I’m not completely sure. I do have some thoughts. But before I share them, I again must emphasize that there is nothing wrong with the handsome production director Kwame Kwei-Armah has given us, from the amazing two-storey set by Timothy R. Mackabee to the decolletage-heavy, periwig-topped, bustle-bottomed, gilded costumes of David Burdick, to the sturdy performances of Bruce Randolph Nelson and Stanton Nash (pictured above) as Salieri and Mozart, to literally everything else associated with this resurrection of the show. I am convinced that the problem lies with the script itself.

And I think you can sum it up in two words: slow and obvious. The exposition begins with a sort of choral back-and-forth between two Viennese gossips, Venticelli (“little winds”) in 1823, about composer Salieri, who is dying. They obsessively repeat the same words over and over with variations, as if they were musical phrases in a Minimalist composition, evidently to emphasize both the indefiniteness and the widespread nature of talk about Salieri’s impending demise and the possibility that he may have poisoned Mozart thirty years earlier. And all of a sudden we in the audience feel the sinking feeling this may not be as much fun as we’d been expecting. This ought to be moving along. Then we get Salieri sitting in a wheelchair, being arch about what really happened, but intimating that he had a hand in Mozart’s demise. And after a good deal of that, we finally get the story itself, in flashback.

As to the story itself, we learn – well, it would be a very sheltered theatergoer who didn’t already know the gist of what we learn. But the story of why and how Salieri did Mozart in (this is not necessarily historical) is encumbered – there is no other word for it – by Salieri’s narration. Nor is this a “just the facts, ma’am” narration; this is the tortured but ploddingly literal tale of Salieri’s failed relationship with God himself, of God’s betrayal of a bargain Salieri feels God made with him, by giving Mozart a divine talent that should have been Salieri’s. It is also a sort of greatest-hits retrospective of Mozart’s compositions, especially his operas. That’s an awful lot of freight for a single play to carry.

I don’t think it’s insignificant that when Shaffer reworked the script for the 1984 movie, he made it explicit that the mysterious commission for the Requiem that was Mozart’s great final composition came from Salieri himself, disguised as the revenant figure of Mozart’s late domineering father, in hopes that Salieri could steal the Requiem and claim credit for it (a scheme foiled by Constanze, Mozart’s wife). The storyline needed some old-fashioned intrigue and melodrama to stay interesting.

As it is, the play is about using influence and connections to starve a rival artist, a somewhat more realistic but less compelling tale. But I think what mostly resonates less is the God part of it. Have we just become less religious and therefore less inclined to find credible Salieri’s being able to entertain a conceit that he had a deal with the Divinity? Hard to say. But the God stuff seems to be the place where the rubber fails to meet the road, where playwright Shaffer’s own aspirations prove too lofty. And it matters tremendously, because this is Salieri’s play, much more than Mozart’s.

As I find myself saying almost every single time I talk about a play put on by Center Stage, the acting is superb. But as I also find myself saying from time to time, I wish there were a larger Baltimore contingent in the cast, people whose resumes show they came up through the local theater scene. I find myself saying this particularly for two different reasons this time around.

First, it is clear – and this show finishes establishing it, if anyone doubted – that Bruce Nelson has emerged as one of the leading lights of the local professional stage, with this being at least his fifth appearance at Center Stage, and with his turns at the REP, Everyman, the Folger, Olney, and Woolly Mammoth.

Second, we are this month mourning the passing of two actresses who were mainstays of Center Stage in the days when it truly was a local repertory company: Tana Hicken and Vivienne Shub.

There has been much ink, digital and otherwise, spilled (some of it by me) about how Baltimore is emerging as a theater town not only in the development of four professional companies with their own “houses,” but also in new kinds of synergy that are occurring here, among the professional companies but also to some degree with the two academic theater programs in the area and with the community theater scene. But this is one area where much more should be done. Bruce Nelson‘s nurturing to mature artistry by the entire community is admirable, but we need several Bruce Nelsons now. We need fewer imports and more exports with the Baltimore brand on them.

I understand that Everyman is now effectively filling the role that Center Stage used to, local professional company working in repertory. (Well, Everyman and in various ways the Chesapeake Shakespeare Company and Single Carrot.) But as long as Center Stage weighs its casts down with men and women whose experience is heavily laden with Broadway and Off-Broadway, and with regional theater from (to misquote W.S. Gilbert slightly) every country but our own, this local theatrical enterprise is going to have a harder time launching itself and earning the national respect it aspires to.

Just saying.

I promise you’ll enjoy Amadeus. Maybe just not as much as you might have expected. It’s a fresh production all right, but the play itself has gone off a bit.

Copyright (c) Jack L. B. Gohn, except for production photo

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Secession: The Right That Can Be Wrong

Published in the Maryland Daily Record October 23, 2014

Secession and the prospects of secession have been much in the news. Eastern Ukraine, ISIS, and Scotland, to name three, are areas where there have been efforts to partition out a new country from an old one, or, in the case of ISIS, from two of them. And there have been plenty of recent instances where secession has been successful, like Southern Sudan, Eritrea, and the republics carved from the former Yugoslavia, and others where it could someday happen, like Catalonia or the Palestinian territories or Quebec. How do we feel about secession? How should we feel about it – realizing as we ask ourselves that question that this country itself was formed by secession – from colonial status at least – once upon a time?

What the Declaration Declares

American constitutional theory, one soon discovers, is deeply ambivalent about secession. In essence, the Declaration of Independence, which formalized our country’s first act of secession, is at odds with the Constitution. The Declaration posits, in words we all know, that it may “become necessary” – and hence obviously permissible – “for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, [a] separate and equal station.” While the Declaration says it is appropriate to state reasons for doing so, the Declaration does not say that reasons are required; that secession is a right is something the Founding Fathers simply decided to assume, and one does not need reasons or permission to exercise a right. To be sure, the Declaration says that when the existing state structure becomes destructive of the ends of government (life, liberty and the pursuit of happiness), it is definitely appropriate to secede. But the existence of the right, as articulated in the Declaration, seems not to depend upon such preconditions.

What the Constitution Says

Our experience with the Constitution has been rather different. In the first place, the nation formed from a grouping of colonies which, upon independence, became sovereign nations, and to some undefined extent remained so after the Union was formed. The Tenth Amendment retained for those former colonies whatever sovereign powers were not specifically ceded to the federal government. Indeed the constitutional theory of the Confederate States of America, the nation’s second great experiment with secession, was based on the Tenth Amendment.[1] The Constitution does not expressly provide for any right of secession, but the South maintained that it was acting under the powers reserved to the various states under the Tenth Amendment.

Lincoln read the Constitution differently. For him, the absence of a constitutional mechanism for secession meant there could be none, and that even a union formed by secession could not be unmade by it.[2] And he no doubt felt that the Civil War might settle that issue.

But did the Civil War in any way “prove” that secession was not a legal right? In a positivist sense, yes.[3] But only in that sense. What the Civil War really proved was that no one would allow secession to happen, right or wrong. But might is a very unsatisfactory way of making (or unmaking) right, and no real reply to the reasoning of the Declaration of Independence.[4] The Declaration says that governments derive their just powers from the consent of the governed, something almost everyone in the West would agree with. This seems to be the quintessential human political right. Secession is simply a withdrawal of that consent by a large group of the governed all at once.

Dual Citizens?

Perhaps sensing this problem, one of the things the post-Civil War Republican Congress and the Northern States did in passing the Fourteenth Amendment between 1866 and 1868 was attempt to destroy in a more theoretical way the constitutional underpinnings of secessionist theory.[5] In the Fourteenth Amendment’s citizenship clause (which made everyone born in the county a citizen of the U.S. and not merely of a constituent state) and the privileges and immunities clause (which protected U.S. citizens from discrimination under state laws), there was an undoing of the notion that had swayed Robert E. Lee when he declined command of the Union Army, i.e. that he was a citizen of Virginia first, and of the United States only secondarily and derivatively.[6] The thinking was that if the states lacked their own “detachable” citizenries, then the states, the otherwise naturally detachable governmental and geographical units, could not take their citizens with them if they tried to leave. And what good would a secession be if it did not sunder peoples as well as territories?

But let’s grant that with the Fourteenth Amendment citizens would not be detachable anymore merely because a state left. If a state somehow did leave, though, all the Fourteenth Amendment would say would be that the citizens of the state would still be U.S. citizens. But then what? Even American law admits the possibility of dual citizenship. The citizens of the daughter country would still be citizens of the mother country – if they wanted to be – but nonetheless the daughter country would have citizens. Hence neither expressly nor by implication does the Fourteenth Amendment really outlaw secession or deprive a daughter country of citizens. So the Fourteenth Amendment isn’t much in the way of inoculation against secession.

Expatriation

Then too U.S. law unquestionably recognizes the right of expatriation for individuals, and it recognizes this as a fundamental human right.[7] But if it is a fundamental human right for individuals to expatriate, what principle prevents that right from extending to groups of individuals, to polities, to states? Surely expatriation is more effective if done in large blocs. Does it cease to be a right as it becomes more effective? No obvious reason why appears.

So we have a right clearly recognized as extending to individuals, not explicitly forbidden to states by the Constitution, apparently preserved by implication to states by the Tenth Amendment, and in harmony with the sense of the Declaration of Independence. That right, then, would seem to be of equal dignity with expatriation, which is recognized. Secession is a right.[8]

It’s Always Complicated

In practice, does that mean that the North was wrong to oppose Southern secession a century and a half ago? No; slavery was one of the most massive human rights violations in human history, and the Southern secession was undertaken primarily to perpetuate it: an exercise of a right in service of the violation of a right. And in the hierarchy of rights, those of the slaves trumped those of the slaveholding states. Surely the North was not wrong to intervene.

But, as I hope to show next time, that complicated analysis is typical of what we see when we look at secessions and attempted secessions the world over. Yes, sometimes in the course of human events, peoples want to part ways, and as an abstract matter they should have that right. But such parting is all too often sought for reasons or by means that do not look like a simple exercise of human rights. Rights can be wrong. As the proverb puts it: Circumstances alter cases.

The American experience with secession is replete with those circumstances. And so are most of the others, as we shall see.

_____________

[1]. See Robert W. McGee, The Theory of Secession and Emerging Democracies: A Constitutional Solution, 28 Stan. J. Int’l L. 451, 454 (1992).

[2]. Daniel A. Farber, The Fourteenth Amendment and the Unconstitutionality of Secession, 45 Akron L. Rev. 479, 486 (2012), says that Lincoln founded his view in the Articles of Association, entered into two years before the Declaration of Independence, which established the individual states as emanations of the national government, as a result of which the individual states could not have enjoyed sovereignty of any sort. With due respect to Lincoln, this is simply poppycock. The text of those Articles says nothing about creating a nation, let alone making the nonexistent nation the source of state or colonial sovereignty. Jefferson Davis, who explicitly relied on the Tenth Amendment for the Southern states’ right to secede, was in this regard a much sounder constitutionalist than Lincoln.

[3]. The Supreme Court, in Texas v. White, 74 U.S. 700, 725, 19 L. Ed. 227 (1868), found what Lincoln thought he saw in the Articles of Association (see the previous Note) in the Articles of Confederation, which described the Union as something which would “be perpetual.” The thing is, we don’t live under the Articles of Confederation. Even assuming that the perpetuity intended by this language was something more significant than the perpetuity of a corporation (which, as we know is subject to mergers, spinoffs, and, of late, inversions, and by that analogy would certainly be amenable to the corporate equivalent of secession without any trespass on its perpetuity), there are numerous aspects of the Articles of Confederation which are obvious dead letters. Nowhere does the Constitution which replaced the Articles pick and choose which aspects of the Confederation it will dispense with and which it will perpetuate (at least other than by repeating verbatim or nearly verbatim the text of the Articles – but in light of the ability of the Constitution to repeat the language of the Articles where it chooses, the fact that perpetuity is unmentioned in the Constitution argues in favor of, not against, an implied right to secede). The Constitution simply moved the Articles out and replaced them wholesale. It was ratified by the individual states, not by “the United States in Congress assembled” or “the Committee of States,” the governing entities of the Confederation. Texas v. White, then, was operating by ipse dixit, not by any intellectually respectable reasoning. In other words, the indissolubility of the Union is established from a legal positivist perspective, but not otherwise.

[4]. This reasoning seems at odds with what I wrote in these pages four years ago concerning Jefferson Davis and the Southern cause, i.e. that they were traitors. If they were merely exercising a collective political right, how could they be traitors? I guess my thinking has changed to this extent: I now think, as I state below, that they had the right to do what they did from a constitutional standpoint. If they had a legal right to secede, then that secession could not be treason, because an act cannot be simultaneously the exercise of a legal right and one of the worst crimes in the book. But I also think, as I write below, that the Confederacy was primarily about slavery, and that it was proper for the North to oppose Southern secession by arms. Jefferson Davis, then, probably was not a traitor; instead, he was the head of a rogue nation built on slavery, something akin to, although obviously not identical to, genocide. (You don’t kill too many of the slaves, individuals selected for their mistreatment by virtue of the people they belong to, a hallmark of genocide, but you kill any prospect of them living what should have been their lives. It may be better than genocide but not by all that much.) Davis was not Benedict Arnold, then, and he was not Hitler, but in my revised thinking he was closer to the latter than to the former. That leaves it just as offensive to me now as it was in 2010 that parts of a federally-funded highway be named after him.

[5]. See Farber at 483. I am obviously much indebted to this article, and have borrowed freely from Professor Farber’s thoughts.

[6]. See Farber at 479-80.

[7]. Expatriation is a fundamental right of U.S. citizens, as recognized by the U.S. Congress as long ago as 1868. As provided in a law passed that year which is still a note within the U.S. Code:

 [T]he right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness… Therefore any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the Republic.

Act of July 27, 1868, ch. 249, 15 Stat. 223 (1868). This right is also recognized in U.S. treaties. See, e.g. the Burlingame Treaty of 1868 between the United States and China which recognized “the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of . . . free migration and emigration . . . for purposes of curiosity, of trade, or as permanent residents.” United States-China, July 28, 1868, art. 5, 16 Stat. 739, 740.

[8]. Professor Cass Sunstein would apparently differ with me, in that he dismisses with contempt the view that there is any right to secede, express or implied, in the U.S. Constitution. “[N]o serious scholar or politician now argues that a right to secede exists under American constitutional law.” Cass R. Sunstein, Constitutionalism and Secession, 58 U. Chi. L. Rev. 633 (1991). In this article, written as the Soviet Union and its bloc were dissolving, he acknowledges the value of secession, but discourages the writing of new constitutions in Eastern Europe that expressly recognize such a right. His reasoning is hard to follow. He seems to acknowledge that secession is a right, but one that it would be dangerous to accord explicitly. But then he also says that the absence of the inclusion of such a right in a constitution is and should be viewed as a waiver of that right. But if the right has been waived, it’s no longer a right, as far as I can see. In truth, Sunstein seems to be at least as aware of the perils of an absolutist stance on this issue as I am. He just doesn’t like sounding as undecided as he really is.

Copyright (c) Jack L. B. Gohn

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Rousing MEMPHIS at Toby’s Proves You Can Do Worse Than Be Formulaic

Greg Twomey

Posted on BroadwayWorld.com September 16, 2014

So far as I know, Toby’s staging of Memphis: The Musical is the first local production to date in the Baltimore area, certainly one of the first, and a worthy introduction of the show to the region. It seems to have everything that the Broadway show has: fiery, precise dancing, tuneful belting of catchy songs, great period costumes. In other words, a sure-fire great time, as one would expect for a musical that, on Broadway, won the Tony for Best Musical, Best Score, and Best Book.

The show did have its critics when it first came out in 2010. Charles Isherwood of the New York Times described Memphis as “ slick but formulaic entertainment.” I think the formulas he had in mind were Hairspray (rock and roll as the great mingler of races in the Fifties and Sixties), Dreamgirls (the rise of female black singers), and any number of dramatizations of the lives of charismatic but self-destructive entertainment figures (many of them dramatized on the screen rather than the stage), and possibly a touch of A Star Is Born (the rise of one entertainment figure while another tanks), and maybe even some Bye-Bye Birdie (affectionate fun poked at bobby-soxers). However, the reader will have doubtless noted that these are some pretty good patterns, and that, as applied to the tale of an iconoclastic white DJ in love with a black singer in the segregation-era South, they’re likely to fit together in unpredictable ways. Indeed, my companion remarked to me that thematically the show was a bit overstuffed. To which my response was that the messiness of all these themes interacting was refreshing. Yeah, you can sort of plot where it’s likely to go, but that’s true of Shakespeare too. The Tonys it earned notwithstanding, one can agree this show is not a pinnacle of the musical theater, but it is solid entertainment.

The story, if you don’t already know, concerns a white DJ named Huey Calhoun (Craig Twomey), (reportedly based loosely on a Memphis DJ named Dewey Phillips), who, exploiting his natural personality as a super-cracker, nonetheless pioneers racially integrated playlists at white stations and eventually fronts a black-oriented show where, as in Hairspray, local teens dance to the latest hits. And it concerns Felicia, an aspiring black singer (Ashley Lauren Johnson), who may be in love with Huey but quite reasonably worries about the price she’ll have to pay in a violently-segregated city if their love becomes known. Their communities, personified by Felicia’s highly protective brother Delray (Sayne-Khayri Lewis) and Huey’s somewhat bigoted though educable mother Gladys (Lynne Sigler), are trying to pull them apart while the music industrial machine personified by radio station owner Mr. Simmons (Robert John Biedermann 125), is continually resisting while Huey, a natural who never loses confidence in himself, pushes his outrageous racial and musical mixing undiscouraged. That all does not end well is a given with personalities like these; that Huey is on the side of history we also know. Working to the uneasy compromise between these two dynamics is all we really ask of the plot, and we get it.

What propels this production, in addition to a tight musical ensemble under the direction of Ross Scott Rawlings, and Christen Svingos’ choreography, is the top-to-bottom superb cast. Critical, of course, is Huey, and in Craig Twomey the directors (Toby Orenstein and Lawrence B. Munsey) have the perfect specimen. It’s been awhile since I saw the Broadway version, but it seems to me Twomey has Chad Kimball’ s (the original Huey) moves and look down, moving like some kind of long-legged flightless bird. As Felicia, Audrey Lauren Johnson has one fundamental job, to deliver r&b coloratura, and she does it just fine. And there are a couple of very nice performances from the second-tier characters, Tobias Young as a hefty young man somewhat shocked by his own musical and dancing talent and Lynne Sigler, whose Gladys celebrates her emancipation from bigotry with a number that starts out white gospel and ends up the black variety.

And now for a criticism. Toby’s is dinner theater, with all the good and bad that that entails. One of the worse things, and one Toby’s, at this stage of its artistic accomplishment, could surely do without or at least with less of, is the chat by a cast member with the audience before the proceedings begin. At best, these are part of the entertainment, sort of a warmup act. But the current designated ambassador, Mr. Biedermann, goes on far too long and far too insultingly in a Don Rickles vein, as people’s birthdays and anniversaries are acknowledged. We may laugh, but it’s not a happy laugh, and we are all waiting with mounting impatience, long after the designated curtain time, for the real entertainment to begin. A ritual that could take two minutes (a la Prairie Home Companion) destroys the better part of a quarter hour. When it comes to this aspect of the performance, Toby’s should internalize the message that less is more.

Instead, Toby’s should focus on what it does so well: getting on with the show.

Copyright (c) Jack L. B. Gohn, except for production photo

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They Do Not Serve Who Only Stand and Wait: THE UNDERSTUDY at Everyman

Danny Gavigan, Beth Hylton, Clifton Brandhagen

Posted on BroadwayWorld.com September 2, 2014

Is Theresa Rebeck serious? In The Understudy, a play where the audience is constantly laughing, is she reaching for something profound? Or is the question even meaningful? If the universe is absurd, and the world of the theater mirrors that absurdity, and the play in turn mirrors the world of the theater, how can it be meaningful to call the play either tragic or comic? The distinction may not compute.

What we know is that we come into life with a desire to do meaningful things, just as an understudy comes into the theater motivated to produce great thespian art. Yet if the understudy is our avatar, how discouraging is his example! For, as in Rebeck’s play, the understudy’s task is condemned to nearly certain futility. Particularly so on today’s Broadway, where plays are too often packaged as vehicles for screen stars whom the audience pays a large premium to see, in productions with limited runs. The setup is almost guaranteed to incentivize producers to demand that the big screen stars appear at every performance, and to incentivize the stars to do so, affording no opportunity to the understudies, stage actors who wait fretfully, paid but not called upon, in the wings. Pace Milton, they do not serve who only stand and wait. They wish that they could serve, but that is not the same thing at all.

Harry the understudy (Clifton Brandhagen) is warned that he has no chance to appear. He’s told this by Jake (Danny Gavigan), the action film star he’s brought in to sub for if the call ever comes. He’s warned that he is so insignificant in comparison with a man who commands $2.2 million a film and whose last outing did $65 million in box office the first weekend that no one will let him on the stage. Even if Jake were inclined to yield the spotlight, it is Harry’s bad luck to be subject to the dictates of Roxanne the stage manager (Beth Hylton) with whom he has, let us say, a history, one that does not incline her to give him a break.

In Rebeck’s 2007 play, the action revolves around one of these star-driven vehicles, a supposedly newly-discovered play by Franz Kafka, whose oeuvre was completely devoted to limning the menacing absurdity of life. So both the play and the play-within-the-play preach the same sermon: You may be trying to do something that attains meaning by being witnessed and judged, but in truth no one will ever see you or judge you. As an understudy, you are condemned to eliciting what meaning you can from what one frustrated character in A Chorus Line summed up as “dancing for my own enjoyment.” And in fact that is exactly what the three characters in the play end up doing, as depicted above, in a deliberately insane tableau played before a backdrop painted expressionistically to signify a Kafka-esque prison. (It has turned out, just before that moment, that the action star and the stage manager are as insignificant and as fated to be as invisible as is the humble understudy.)

Rebeck’s potentially bleak vision is softened by her evident love of the theater and of theater people (also on display in Season 1 of Smash – the good season, not the horrible second one – for which Rebeck was the show runner). The show is full of affectionate insider humor, about the difference in the value of Equity cards versus Screen Actors Guild cards, about not eating the props, about the imperturbability of stage managers. And Rebeck is too canny a playwright to depict the characters as mere flat stereotypes. One develops an affection for these three, including the initially prickly action-movie actor, as they wend their way down the path to inconsequentiality. Each of them, it emerges, has an integrity, the core of which is a desire to help construct whatever it is that somehow makes a play so paradoxically real an experience, even in the face of an existential moment that deprives them of the crucial counterparty in the transaction: an audience.

Director Joseph W. Ritsch keeps the action moving and the jokes flowing, and Daniel Ettinger’s sets, which amusingly conjure up every cliche about Kafka’s imagined world are alone with the price of admission.

A final note: Although I’ve written before about the Everyman company in these pages, I managed to miss its inaugural season in its new home on Baltimore’s Fayette Street, so this was my first opportunity to see Everyman in its gleaming new space, which suits the players well. Baltimore now has three professional repertory troupes with their own spaces (the others being the Chesapeake Shakespeare Company and the Single Carrot Theatre). Putting these together with all the other organizations, professional, community, and academic, that bring theater to Charm City, many representatives of which were in attendance at the premiere along with the familiar faces from the critical community, I was struck by how Baltimore truly feels like a theater town of real synergies, whose time of greatness has come.

Copyright (c) Jack L. B. Gohn, except for production photo

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Cumberland Days

The Chairman Dances, by John Adams, performed by the San Francisco Symphony, conducted by Edo De Waart (1987), encountered 1987-1989

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By the mid-Eighties, I had made sufficient progress as a junior lawyer that my place in my law firm seemed assured. What I’d assured, for as long as it lasted, was a work life primarily devoted to tending to one class of cases for one client. Clients are seldom forever, and case types go in waves, so my specialization was risky, but it was nonetheless a great way to start a career.

Particularly for a guy like me. As readers of these pages already know, I had a taste for the computer, an affinity for the library, a touch of wanderlust, and a meditative bent. And this was the job to suit all of these inclinations – as will become clear.

A Synergy of Abandonments

My client was CSX, the giant railroad company that was emerging at that era from the amalgamation of the Baltimore & Ohio, the Chesapeake & Ohio, the Seaboard, the Louisville & Nashville, and other roads. All of these railways, indeed all of American railroading, had been built on the steam locomotive. A generation before, though, steam power had been abandoned; now a large part of the railroads’ workforce was being abandoned as well. Really, really abandoned; there is a chart here that gives a sense of how thoroughly abandoned those old workers were. Some highlights: from 1947 to 1986, the four decades before I got involved in this work, U.S. railroad employment had plummeted from 1,516,000 to 323,000. By the time I got out of this work, in 1994, the total was down to 234,000.

But it’s an ill wind that blows no one any good. The synergy from those two abandonments nurtured my career for a while. Consider the steam locomotive: in essence a boiler laid on its side. And in the latter part of the industrial era, standard engineering practice called for doing one thing with pretty much any boiler: wrapping it in asbestos. Locomotive maintenance, in turn, called for these great beasts of machines to be lugged into back shops and roundhouses, stripped of their metal jackets, and for the asbestos sheathing to be pried away so that the machinists could get at the boilers’ innards. And then the process would be reversed. Needless to say, the unsheathing and resheathing would cause asbestos to become “airborne,” as industrial hygienists would term it.

By 1986, there were a lot of out-of-work old men with breathing difficulties who had once worked for the railroad. From their perspective the railroad had shown them no loyalty; now it would be their turn to show none. Along with tens of thousands of former smokestack industry workers around the country, they found lawyers and took their former employers to court for what had happened to their lungs. And among the defendants were the legal shells of CSX’s constituent railroads. When they were sued in Maryland, the cases came my way.

Now, at least in my view, at that time and still today, the claims of the plaintiffs in these cases to be suffering from asbestos disease were generally dubious, and the asbestos disease in those who were genuine asbestos victims was generally not very consequential.[1] But I never thought that occupational disease was what the cases were really about. I thought of them as a sort of collective evening of the score between employees and an employer which had turned them out. Whatever the truth of the matter, the cases had to be dealt with.

The railroad almost never got sued by itself. The manufacturers of the asbestos products previously used in the railroad industry (not just boiler lagging but brake pads and gaskets) always got sued along with the railroads – at least until the asbestos claims put those fellow-defendants into bankruptcy. And as much as the railroad would have liked to turn around and point the finger at this gradually shrinking pool of co-defendants or at the tobacco companies, it was also a fact that all these other companies were suppliers and shippers. So there was an odd combination of antagonistic and shared interests at work.

Catnip

It was all catnip to me.

First, there were a lot of plaintiffs, allowing me to organize a lot of data, to set up a database, in other words – doing this hands-on in an era when most lawyers, even the few who had direct access to a computer, wouldn’t have even known exactly what a database was. I, by contrast, was given a room just for documents and my very own computer. The software I relied on on that computer was truly primitive, something called Nutshell. About the time this work drew to a close, I started using true relational databases for other things, and it became clear in retrospect that in my asbestos years I had been trying to force a two-dimensional database (basically a big spreadsheet) to do things beyond its natural limitations. But I came close enough, largely because I was left alone and given plenty of time; any gaps that emerged I could bridge in ways that weren’t strictly database queries. I don’t know how much of my time was written off by the responsible partner – a lot, I suspect. But I was teaching myself database work, which has been a mainstay of my personal and professional life ever since.

There were lots of interesting legal questions, which I can’t discuss, but I can say that they gave me very good reason to spend afternoons looking at statutes and cases in the library, and drafting legal memos, the lawyerly occupation above all others that I enjoy.

Then too I was learning all about a medical field. I found out that all the expert witnesses referred to a body of medical literature comprising about three hundred articles. I painstakingly assembled those articles, read them all (indexing them in my database), and learned enough to be dangerous, as the saying goes. Armed with this jerry-built medical knowledge, I had to develop expert witnesses. With some help from lawyers who were defending railroads elsewhere, I had to go travel to various places where the experts were to make them ready to testify.

Old Shops, Old Warehouse

Glenwood, 1986

Connellsville, 1986

I also had to travel to the old locomotive shops, in places like Glenwood and Connellsville, Pennsylvania, and Cumberland, Maryland, to figure out what I could about the working conditions twenty to forty years earlier. (It was a sign of the times, I still remember, that at one of these shops, when the word got out I was a railroad lawyer, I was mobbed by workers asking when the next buyout would be.) While visiting these shops, I would take pictures which would tell me tantalizingly little, but which would at least fix these places in my memory somewhat.

Knowing the conditions also meant knowing the products involved. Gradually I built up a book of photos of the old products, especially photos with the name identifications of the manufacturers. I figured that even if the railroad was sensitive to the perils of implicating suppliers, I had to know who they were. This took me to old repositories of dusty records, all in the process of being trashed by a corporate colossus that could not have cared less about preserving relics of its past. Principal among the places I looked was the old Baltimore & Ohio warehouse at Camden Station in Baltimore.

Camden Yards Warehouse

Modern baseball fans know it as the backdrop to Oriole Park at Camden Yards; I knew it in its dying gasp as an actual warehouse. Many of its windows were broken; birds and bats flew in and crapped on cardboard boxes filled with every imaginable kind of railroad record, indexed in haphazard ways. You could get lost in that vast space, a kind of vertical equivalent of the repository where the Ark was stored at the end of Raiders of the Lost Ark. As indignant as I felt about this handling of the old records, veritable books about a bygone way of life if you knew how to read them; I knew that dumpsters and shredding awaited these boxes that I might be the last human ever to open.

But it wasn’t just dusty places I went to. I also had to sit in a high rise office tower to go through several years of corporate minutes of the B&O and the Western Maryland, to learn when and how locomotives had been purchased – and to rule out what lawyers call “notice” of asbestos claims – which of course no one had received. (Remember that asbestos had been rendered ubiquitous precisely to promote safety, not to destroy it. And that such benevolent purpose was the state of the art until about 1972.)

My Plaintiffs

Beyond that, I had to get to know my plaintiffs. I know, I know, my client was the defendant. But in order to try to defend that client, I still had to know the plaintiffs, these machinists and brakemen and engineers and firemen and maintenance-of-way workers, and I thought of them as mine. I had to get to know about their individual asbestos exposures, their individual careers, their medical histories, their hobbies, their tobacco use, their families, their non-railroad occupational exposures to asbestos. Sometimes they had moved far away, and I went after them and their treating physicians: to San Francisco, to DuBois, Pennsylvania,[2] to Sandusky, Ohio, to Three Churches, West Virginia.[3] But most of them had not followed that pattern.

Cumberland Locomotive Shop, 1987

Cumberland Locomotive Shops From Above, 1987

No, most of these old men had aged in place, in or near the Appalachian railroad towns I’ve mentioned. This especially meant Cumberland, Maryland, the home of the big back shop that CSX still used (and in 2014 still uses under the name of the CSX Cumberland Diesel Locomotive Shops) to service much of its motive power fleet (all diesels now, of course). I and a group of lawyers representing the dwindling but still substantial corps of manufacturers of asbestos products once used by railroads would sit in a conference room for days on end, several times over the years I was doing this work, asking the same questions over and over again of one after another railroad worker. After a couple of stabs at other venues, we lawyers came to a consensus that the place to take the depositions was the Best Western Braddock Motor Inn in the little village of La Vale, halfway between Cumberland and Frostburg.

For me, it was a wonderful time, though it is a bit peculiar to describe.

Getting There

Let me start with the trip itself. Though once or twice I flew out to Cumberland (once in a private jet chartered by a defense lawyer who had far more clout and financial backing than I did), mostly I drove out on superhighways, as far as they would take me – which was not initially all the way. What is today known as I-68, the leg of the road between Hancock and Cumberland, La Vale, and Frostburg, was still being built when I started. I would roll out of bed before sunup, and after about two hours’ drive be in Hancock, the narrowest part of Maryland’s panhandle, about 1.8 miles in total squeezed between Pennsylvania and the Potomac. Then the trip became more of a challenge. The old National Highway, aka Route 40, uneasily coexisted with the superhighway under construction that oft-times was usurping its roadbed. At best, a driver could expect to cope with detours, mud, and dust from the great machines that were, foot by foot, grinding mountainside into freeway. At worst, there could be delays up there in the clouds on the curve of a two-lane highway with no sightline to what was halting traffic and no intelligence about when the cars would begin to roll once more. As the months and years went by, more and more was done, so that eventually you could get right up to the brow of the valley where Cumberland sat, plunge down the mountainside, and then zoom up the hill again toward the mountain pass where La Vale lay.

The Celica that died, 1987

(It was while going through that dip in the opposite direction that my “single again” car, a sporty but truly disappointing Toyota Celica, finally died on me, when I found that I could not engage the clutch to go back uphill; this vehicular fail, along with my changing life circumstances, prompted me to buy my “newly remarried and looking forward to parenthood minivan,” a Plymouth Voyager, which is the car that mainly comes to mind now when I think of these trips.)

Relaxed

Eventually, you’d get to the Braddock, lying just north of the new highway, adjacent to an exit.

The setting was always calming after the rigors of the road. There was a babbling little mountain stream, the Braddock Run,[4] shaded by pleasant trees that ran right past the parking lot, and the building was covered with brown rustic-looking wooden shingles. You could park your bags in your room and then go right down to another hotel room that had had the beds taken out and a table brought in, and go to work.

The depositions themselves were about as relaxed as litigation ever gets. I many not have understood why at the beginning, but I soon understood why. Nothing really mattered. All these cases were going to be resolved. From the point of view of the corporations that sent most of the lawyers, these were exercises in putting checkmarks in the database. Did a man have pleural thickening? Did a man have a plausible claim to asbestos exposure? Those and similar questions were ultimately reduced to statistics on both sides. And periodically I would be told that a group of cases had been resolved, I presumed with some reference to those checkmarks, though I seldom learned much about it. Above my pay grade.

I never got to try one of these cases. Not one. But no one grudged me the opportunity to sit in a hotel room and make believe. It took me a while to figure out the game, but when I did, it certainly took the pressure off. I realized that, as Arlo Guthrie put it, “the judge wasn’t going to look at the twenty-seven eight-by-ten color glossy pictures” – all the articles and the databases, and the expert testimony I had so painstakingly assembled. It was all Kabuki.

Learning A Community

So even though I came to each deposition with a full collection of work records and medical records, even though I asked all the right questions and got into occasional tussles with the plaintiffs’ lawyers over objections, basically I was free to enjoy what the depositions had to offer: an unparalleled look at a bygone slice of life. I developed a genuine affection for the railroad men, and got to know a lot about them as a community: who was married to whose sister, who had worked alongside whom, whom they had reported to in the roundhouse at a particular era.

I learned about their hobbies (a lot of what they called “feeshin’” and a fair amount of roller skating). I learned that the industrial world that had produced them had collapsed. That there had been three big employers: the railroad (which had so drastically shrunk), “the Celanese” (acetate works, closed in 1983) and “the Kelly” (Kelly-Springfield tires, closed in 1987). The rug had been pulled out from under them and their friends, and their dependence on tobacco had in many cases destroyed their bodies and condemned them to invalid lives and early deaths. These were men who by-and-large had been built for loyalty, for relationships of lifelong reciprocal support between themselves and their country and their employers. And even when it all went wrong, most of them went on being the strong people they had grown up to be, survivors of the Greatest Generation, mainstays of families.

Of course they were not being honest about asbestos disease; I daresay most of them knew that. But I’m sure they viewed the litigation as a way of getting a little bit of their own back against an employer which, if it didn’t exactly inflict asbestosis on them, had still completely let them down. I did my duty by my client, but I was glad it was so ineffectual.

Always A Pleasure

As for me, the stays at the Braddock were frequent, for one days, two days, once even a week. There wasn’t much in the way of nightlife or fancy dining (one first-class restaurant in Frostburg), but you could go for a dip in the hotel pool, and just luxuriate in the peacefulness of the setting. And no one ever questioned my expenditures. To the extent I desired company, I generally had it, in the other lawyers participating, on both sides. I made friends with more than one of the plaintiffs’ lawyers we sat across from during the day.

So it was almost always with pleasure that I would rise early in the morning from time to time and chuck boxes of documents into my minivan, and head around the Beltway to the beginning of I-70. I used to joke that the car knew the way. Even today, over twenty years later, if I approach that interchange in an absent-minded state, my tendency will be to move my vehicle into that exit lane without thinking about it, forcing me to correct my course when I wake up and realize what I’m doing.

Foxtrot? Really?

While I was on those trips, the cassette in my onboard cassette player was often the San Francisco Symphony’s very popular rendition of five works by composer John Adams, highlighted by his twelve-and-a-half-minute fantasia The Chairman Dances. The liner notes were cunningly worded to make it seem, without actually saying it, that this number was from Adams’ hit opera Nixon in China. Although (as my readers know) I’m a great fan of the musical stage, I’m not much of an opera guy, and so I went on believing what the liner notes kind of implied until I was in preparation to write this piece. When I acquired a Blu-Ray of the Metropolitan Opera production, I realized I’d been had. The correct way to describe the relationship between the opera and this piece is that Chairman makes liberal use of musical figures and themes from the third act of Nixon. It is simply a marvelous polyrhythmic confection. The subtitle is “Foxtrot for Orchestra,” but when you’re talking about a minimalist composer, don’t look for promises like “foxtrot” to be kept. Foxtrots are four-beat animals; this sounds as if it’s written in eight much of the time,[5] though there certainly is a quite-deliberate Fred-and-Ginger feel about a lot of it; it’s supposed to evoke Mao, rejuvenated in fantasy, dancing with his “fiendlike queen” Jiang Ching.[6]

Everyone who hears this piece seems to hear different things in it, many of them surprising to me.[7] But that capacity to evoke almost anything is a strength. The piece soars at times; it sounds like pounding industrial pistons at others; it whispers like the second movement of  Eine Kleine Nachtmusik at others. It covers a prodigious amount of exciting musical territory in less than a quarter hour. The multitude of the “reads” is easy to understand.

A Happy Association

My own is what you’d expect: a vision of the territory between the Baltimore Beltway and Maryland’s Alleghanies rushing up to meet my windshield. This infinitely pliable music has a motile quality most of the time that goes well with memories of the rapidly changing scenery. The cassette bearing Chairman Dances and its four companion-pieces was given me by a paralegal who made the ride out to Western Maryland with me once, and perhaps made the present on that very trip. This poor woman was cursed with an eye-rollingly bawdy name that would not have been out of place in an Ian Fleming novel, and it was a terrible fit for her. She was (at least in the stage of her life she’d reached by the time I met her) one of the most straitlaced Christian fundamentalists I knew. She was fundamentally averse to the temptations of the flesh, and I think even to the extent such temptations extended to the voluptuousness of the ear (a susceptibility of mine, to be sure), she was uncomfortable with them. Certainly the cassette was of no interest to her. So she was glad to give it away, and I was glad to receive it.

Generally, all five pieces on the tape would last me most of the way to Frederick if I played it once, or to Hancock if I played it twice.

To this day, if I hear the music, I think of my Cumberland days, and if I take that drive, I think of the music. They were good trips for me, and it’s a happy association.

___________________

^[1]. Based on the medical science as I absorbed it, I knew the following. Asbestos can cause four primary conditions: a) asbestosis, b) thickening of the pleura (the coating of the lungs), c) lung cancer, and d) mesothelioma. Asbestosis is an actual disease caused by asbestos exposure that makes it hard or impossible to breathe; but you seldom get asbestosis from the levels of exposure that existed in railroad shops. Moreover, smoking-related chronic obstructive pulmonary disease (and they all smoked) can mimic the symptoms of asbestosis. Pleural thickening, though strongly associated with asbestos exposure, is not a disease and has no symptoms, but it does show up on x-ray, which afforded the plaintiffs’ experts a dubious hook on which to hang the claim that asbestos exposure had caused the obstructive disease many of the plaintiffs suffered from. Lung cancer, by contrast, is, as we all know, a deadly disease, but it is weakly associated with asbestos – while strongly associated with tobacco use. And though mesothelioma is deadly, and strongly associated with asbestos, and can arise as a result of minor exposures to asbestos, almost none of the plaintiffs I was up against, perhaps two among dozens, had been diagnosed with it.

^[2] I flew to DuBois in a tiny prop craft in the middle of a thunderstorm, in what was probably the scariest flight of my life.

^[3] I had to go to Three Churches three days after my wedding described in the previous piece. There was no way to finesse things to schedule a real honeymoon. Instead Mary and I spent the night of our wedding at home, drove to New York the next day, had one night overlooking Central Park, then drove back (albeit by a pleasantly circuitous route), and early, early the following morning, I had to get up extra early and start driving to West Virginia. I was told You’ll know you’re in Three Churches when you see three churches. So in 48 hours I went from Central Park South to a small, dirty trailer in the Appalachians where there was no room to sit, while we listened to a dying old man on oxygen tell his life story.

^[4].

The Courthouse Today

It’s a safe assumption that everything around Cumberland named Braddock has as its namesake General Edward Braddock, a British officer who commanded Fort Cumberland, approximately where the Allegany County Courthouse now stands, and who fell in the French and Indian War. (Washington served as Braddock’s aide on that campaign.)

^[5]. The score starts in two, and there are parts in four and in three. Maybe that’s how it’s written. I still say it’s really in eight most of the time, although I note that the polyrhythms sometimes resolve by incorporating a two-beat rhythm and a four-beat one by amalgamating them as two four-beat structures.

^[6]. The score is prefaced:

Chiang Ch’ing, aka Madame Mao, has gatecrashed the Presidential banquet. She is seen standing first where she is most in the way of the waiters. After a few minutes, she brings out a box of paper lanterns and hangs them around the hall, then strips down to a cheongsam, skin-tight from neck to ankle, and slit up to the hip. She signals the orchestra to play and beings to dance by herself. Mao is becoming excited. He steps down from his portrait on the wall and they begin to foxtrot together. They are back in Yenan, the night is warm, they are dancing to the gramophone…

Confusingly this is signed “Scenario by Peter Sellars [the impressario and director] and Alice Goodman [the librettist],” yet Chairman was not performed as part of Sellars’ opera nor sung. Whatever the meaning of this, although the opera, and I believe Chairman Dances as well, do not blink at depicting Jiang Ching as savage, the place these works go with two of the most murderous personalities in history, Jiang Ching and Mao, is largely into the private parts of their psyches to which their public malevolence is not perhaps as relevant. In “going there,” Adams and his librettist, Alice Goodman are clearly unapologetic. These works are only in part, perhaps lesser part, about the historical impact of these characters, or those of Mr. and Mrs. Nixon, Chou En Lai, and Henry Kissinger, the other principal roles. Indeed, one way to describe the whole opera is an exploration of the private subconscious lives of people whose public lives were elevated to near- or absolute cult-of-personality status.

^[7]. See the reader comments on one YouTube transcription of the San Francisco Symphony recording.

Copyright (c) Jack L. B. Gohn, except for album art and Camden Yards photograph. Source of Camden Yards photograph: http://www.realclearsports.com/lists/mlb_stadium_landmarks/warehouse.html?state=stop.

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Same-Sex Marriage: The Fight to Shape “the Next Shoe”

Published in the Maryland Daily Record September 15, 2014

When the Supreme Court decided United States v. Windsor last year and invalidated DOMA, the federal Defense of Marriage Act (which denied same-sex marriages federal recognition), it was clearly taking an interim step. There were three important constitutional doctrines involved: federalism, equal protection, and due process. Windsor muddied the water in all three pools. After Windsor, these doctrines needed to be clarified, and the urgent remaining question whether states could constitutionally forbid same-sex marriage remained to be resolved. Since Windsor, the fight has been on to frame the debate that will come to a head when “the next shoe,” the state law case, inevitably drops.

Muddy Water

Let’s consider the muddied water briefly. In Windsor, the lead plaintiff, a widow seeking federal benefits, contended that DOMA should be stricken because it denied equal protection. The majority opinion, written by Justice Kennedy and joined in by the four liberal members of the Court, after genuflecting in the direction of federalism (respect for the rights of the states that recognized same-sex marriages), stated it was deciding the case on due process grounds (protecting the liberty interest in marriage), but confusingly used language and cited case law redolent of an equal protection analysis rather than a due process one. The explanation: the federal government is not subject to the 14^th Amendment (which contains an equal protection clause), but is subject to the 5^th Amendment (which does not); decisionally, the Court has interpreted the 5^th as having an equal protection guarantee implicit in its due process guarantee.[1] (It’s still confusingly-worded.) One or another of the dissents: a) hoped that federalism would aid rather than hinder states in defending their own “mini-DOMAs,” b) berated the Court for not doing a more robust equal protection analysis, and/or c) disputed the claim that there was a liberty interest in same-sex marriage.[2]

This mess left a wide-open field for the cases over state “mini-DOMAs.” In approximately 15 straight decisions, up until September 3 of this year, federal judges have stricken them. And since states are subject to an explicit equal protection requirement, most of the post-Windsor decisions have relied on at least equal protection grounds, though they have also often invoked due process too.[3] Until September 3, none had been dissuaded by federalism concerns.

Into this developing consensus stepped Judge Martin Feldman of the Eastern District of Louisiana, who on September 3 produced in Robicheaux v. Caldwell the first post-Windsor federal ruling affirming a state law not recognizing same-sex marriage.[4] Despite some comments calling it a serious stab at a constitutional vindication of a mini-DOMA, it isn’t serious. To the contrary, it’s judicial amateur hour.

As fate would have it, a model of judicial craftsmanship on the subject showed up the very next day, in Baskin v. Bogan, Judge Richard Posner’s magisterial affirmance for the Seventh Circuit of district court rulings striking Indiana’s and Wisconsin’s mini-DOMAs.

What’s Suspect, What’s Heightened

Let’s talk about where and how Feldman got the jurisprudence wrong and Posner got it right. Both keep their analysis on the equal protection side of the ledger, rather than due process, which is fine, because the equal protection problem seems more pressing than the due process one. Equal protection is, as Feldman calls it, “the most hefty problem.” And, as both judges acknowledge, the threshold issue in equal protection analysis is the standard of scrutiny. Both agree that heightened scrutiny is required under some circumstances, and that in others, legislative classifications will be upheld so long as they have some discernable rational basis. And that is where they go their separate ways.

Feldman says that thus far the Supreme Court has not labeled homosexuals a “suspect class,” and that hence laws against same-sex marriage are not subject to heightened scrutiny. The premise is only technically correct; Windsor treated homosexuals as a suspect class in all but name. Windsor called homosexuals “a politically unpopular group,” and dubbed DOMA a “discrimination of an unusual character” which called for “careful consideration.” As Justice Scalia noted (albeit with dismay), the analysis works the same when the subject changes from DOMA to state law. And “careful consideration” clearly does equate to heightened scrutiny. Judge Feldman tried to draw comfort from the fact that Windsor did not employ the magic phrases “intermediate scrutiny” or “heightened scrutiny.” I would liken that comfort to saying that it’s anybody’s game with two out at the bottom of the ninth inning when the score is 20-0.

By contrast, Judge Posner refused to be trapped by the “suspect class” verbiage, noting that the Supreme Court will employ heightened scrutiny in some cases where the class discriminated against is not suspect. But he went on to point out that minorities whose distinguishing characteristics are immutable when there is a “historical background” of discrimination against them exemplify the very definition of a suspect class, and that homosexuals clearly fit within that definition. And he took apart the level-of-scrutiny shibboleth, brilliantly analyzing it as a cost/benefit analysis. In the end, Posner said, the alleged benefit to society (the raising of children in intact homes headed by two biological parents) does not outweigh the harm to homosexuals or the children in their families, and in any case the laws are not even rational ways of attaining the supposedly desired benefit.[5] Posner noted that Indiana conceded that children of married parents, gay or straight, do better than children of unmarried parents. Why not let their parents marry, then?

For those who insist on scientific proof, it exists. After Perry v. Schwartzenegger, the case that overturned the California law,[6] it has been clear there is real science, and it is unanimous.[7] Feldman sniffily refused in a footnote, however, to come to grips with “the ‘science’ [Feldman’s oh-so-arch quotation marks] on this issue.”

The Only End

In short, the only end to which the laws rationally relate is demeaning and disadvantaging[8] gays and lesbians and their families. Neither logic nor science supports any other reading. The states with these laws disclaim that objective, of course, as did Judge Feldman. “Louisiana’s laws … are directly related to achieving marriage’s historically preeminent pupose of linking children to their biological parents,” he wrote, continuing to whistle past the graveyard.

Feldman likewise said: “The Court also hesitates with the notion that this state’s choice could only be inspired by hate and intolerance.” To which a Sherlock Holmes apothegm is a fit response: “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.” The obvious-in-advance bad fit between means and stated end makes it impossible to believe a single legislator honestly thought he or she was furthering the stated end. And after eliminating that, only one explanation remains. That one explanation was well-conveyed in a recently-viral video of a boy coming out to his hateful family. The video reminds anyone who might forget of the huge reservoir of intolerance that still exists. That is the one and only dark place all these laws do or could really come from. And Feldman’s condescending putdown of the many federal judges who disagree with him as “empathetic” showed where he comes from. It’s not a good place.[9]

Feldman’s willful misreading of precedent notwithstanding, the Windsor majority has not gone away, and the other shoe will drop soon. When it does Posner is far more likely to influence the outcome than Feldman.[10]

________________________

[1]. In Windsor, the Court cited as precedents Bolling v. Sharpe, 347 U.S. 497, 498-99, 74 S. Ct. 693, 694, 98 L. Ed. 884 (1954) (a companion-case to Brown v. Board of Education, making the holding in Brown applicable to the D.C. public schools; D.C. not being a state, it was not subject to the Fourteenth Amendment but only to the Fifth, which did not contain an equal protection clause); and Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217-18, 115 S. Ct. 2097, 2107-08, 132 L. Ed. 2d 158 (1995). These cases make it clear that Fifth Amendment due process where applied to the federal government includes an equal protection guarantee.

[2]. Chief Justice Roberts’ dissent focused on federalism, clearly inviting the Court to say that the respect for state powers limned if not really relied upon by the majority, should in future spare state prohibitions of same-sex marriage from DOMA’s fate. (Hoping the same rationale would lead to an opposite result on different facts, as it were.) Justice Scalia’s dissent disingenuously spoke as if the majority’s failure to address equal protection robustly were an unwillingness to engage with the demands of showing an equal protection violation rather than a bow to the structure of the 5^th Amendment, and he laid down an impassioned argument that equal protection is not offended by laws that allow straight people to marry each other but forbids gay ones to do the same. Justice Alito, joined by Justice Thomas, addressed due process briefly (there is no fundamental right to same-sex marriage, said Alito), and the equal protection issue at length (if not very profoundly), and echoed the Chief Justice’s hopes that the next case would be decided on federalism grounds.

[3]. See, e.g., Bostic v. Schaefer, 14-1167, 2014 WL 3702493 (4th Cir. July 28, 2014) (both); Bishop v. Smith, 14-5003, 2014 WL 3537847 (10th Cir. July 18, 2014) (both); Love v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky. 2014) (equal protection only).

[4]. More accurately, the first published one. As Robicheaux notes, there was an unpublished magistrate judge’s ruling in the Middle District of Louisiana adopted by a district judge, Merritt v. Attorney Gen., CIV.A. 13-00215-BAJ, 2013 WL 6044329 (M.D. La. Nov. 14, 2013) which blandly upheld the challenged law against a pro se constitutional challenge but took no account of Windsor (issued five months earlier) or anything else of significance.

[5]. A portion of Posner’s analysis will give you the flavor:

At oral argument the state’s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with opposite-sex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents – model citizens really – so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.

 Or this:

 Indiana permits joint adoption by homosexuals (Wisconsin does not). But an unmarried homosexual couple is less stable than a married one, or so at least the state’s insistence that marriage is better for children implies. If marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents. The state should want homosexual couples who adopt children – as, to repeat, they are permitted to do – to be married, if it is serious in arguing that the only governmental interest in marriage derives from the problem of accidental births. (We doubt that it is serious.)

 Or this:

Wisconsin’s brief in defense of its prohibition of same-sex marriage adopts Indiana’s ground (“accidental births”) but does not amplify it. Its “accidental births” rationale for prohibiting same-sex marriage is, like Indiana’s, undermined by a “first cousin” exemption—but, as a statutory matter at least, an even broader one: “No marriage shall be contracted … between persons who are nearer of kin than 2nd cousins except that marriage may be contracted between first cousins where the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile.” Wis. Stat. § 65.03(1). Indiana’s marriage law, as we know, authorizes first-cousin marriages if both cousins are at least 65 years old. But—and here’s the kicker—Indiana apparently will as a matter of comity recognize any marriage lawful where contracted, including therefore (as an Indiana court has held) marriages of first cousins contracted in Tennessee, a state that places no restrictions on such marriages. See Tenn.Code Ann. § 36–3–101; Mason v. Mason, 775 N.E.2d 706, 709 (Ind.App.2002). Indiana has not tried to explain to us the logic of recognizing marriages of fertile first cousins (prohibited in Indiana) that happen to be contracted in states that permit such marriages, but of refusing, by virtue of the 1997 amendment, to recognize same-sex marriages (also prohibited in Indiana) contracted in states that permit them. This suggests animus against same-sex marriage, as is further suggested by the state’s inability to make a plausible argument for its refusal to recognize same-sex marriage.

[6]. On certiorari in the Supreme Court, this became Perry v. Hollinsgsworth, which ended without review on the merits.

[7]. The critical passage from Judge Vaughn Walker’s ruling about the status of the expert testimony during the trial:

Psychologist Michael Lamb testified that all available evidence shows that children raised by gay or lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents and that the gender of a parent is immaterial to whether an adult is a good parent. When proponents challenged Lamb with studies purporting to show that married parents provide the ideal child-rearing environment, Lamb countered that studies on child-rearing typically compare married opposite-sex parents to single parents or step-families and have no bearing on families headed by same-sex couples. Lamb testified that the relevant comparison is between families headed by same-sex couples and families headed by opposite-sex couples and that studies comparing these two family types show conclusively that having parents of different genders is irrelevant to child outcomes.Lamb and Blankenhorn disagreed on the importance of a biological link between parents and children. Blankenhorn emphasized the importance of biological parents, relying on studies comparing children raised by married, biological parents with children raised by single parents, unmarried mothers, step families and cohabiting parents. Tr. 2769:14-24 (referring to DIX0026 Kristin Anderson Moore, Susan M Jekielek, and Carol Emig, Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do about It, Child Trends (June 2002)); Tr. 2771:1-13 (referring to DIX0124 Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps (Harvard 1994)). As explained in the credibility determinations, section I below, none of the studies Blankenhorn relied on isolates the genetic relationship between a parent and a child as a variable to be tested. Lamb testified about studies showing that adopted children or children conceived using sperm or egg donors are just as likely to be well-adjusted as children raised by their biological parents. Tr. 1041:8-17. Blankenhorn agreed with Lamb that adoptive parents “actually on some outcomes outstrip biological parents in terms of providing protective care for their children.” Tr. 2795:3-5.

 Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 935 (N.D. Cal. 2010) aff’d sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652, 186 L. Ed. 2d 768 (U.S. 2013). In fact David Blankenhorn, the only expert witness the defenders of California’s law could bring in their defense, has since changed his mind. Even Blankenhorn now acknowledges same-sex marriage does not hurt children. This is well-documented in the HBO documentary on the Perry case, entitled The Case Against 8.

[8]. The cases are stuffed with instances of the kinds of financial benefits that only become available to parents, spouses, or children, if the union which triggers them is recognized as a “marriage” for state law purposes.

[9]. Quoth Feldman:

This Court has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue on same-sex marriage. The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos.

“Empathy” is what political junkies call a “dog-whistle,” fighting language whose significance may be lost on those who do not already agree with the speaker. President Obama has repeatedly throughout his career emphasized the importance of empathy, and has drawn significant conservative criticism for saying he feels judges should have this quality. See Thomas Colby, In Defense of Judicial Empathy, 96 Minn. L. Rev. 1944 (2012). In sneering at the supposed “empathy” of the many other judges who disagree with him, Judge Feldman is therefore announcing his scorn not only for those judges, but implicitly for President Obama (who may have drawn Judge Feldman’s ire by advocating judicial empathy, by supporting same-sex marriage, or maybe just by being a Democrat). In any case, it is unbecoming for a judge to flaunt his politics in what should be an apolitical forum. (As a point of interest, both Judge Feldman and Judge Posner were Reagan appointees.)

In any case, it is hard to discern where the alleged empathy comes in. Apparently, affording weight to the bad impact on LGBT folk and their families, much of it reducible to hard, cold dollars and cents, though called for by any kind of equal protection analysis and probably by due process analysis as well, constitutes a bleeding heart. (Whereas, of course, concern for the fragile sensibilities of allegedly God-fearing gay-haters is no such thing.)

[10]. Space would not permit me to comment in the main piece on three other aspects of the Feldman ruling. Judge Feldman did also reach the due process point. His argument, like that of Justices Alito and Thomas in their dissent in Windsor, wonders how there can be a fundamental right to anything as novel in our society and indeed the world as same-sex marriage. That argument would have a lot more resonance with me were I wedded, as today’s conservative jurists are, to the notion that the meaning of the Constitution is bounded by the original intent of its framers. Nonetheless, like Judge Posner, I believe that an equal protection analysis is all that is required to overturn mini-DOMAs.

I also mentioned above that Justice Roberts “helpfully” hinted in Windsor that if federalism served to overturn help DOMA, perhaps it would come to the rescue of mini-DOMAs. (If Windsor bowed to state laws permitting same-sex marriage, perhaps the “other shoe” case would bow to state laws forbidding it.) Judge Feldman seized upon this hint and tried to expand it. But federalism, properly applied won’t ever save a state law that is otherwise unconstitutional.

And there is another and somewhat interlocked line of defense that advocates for the mini-DOMAs always push: that policy decisions should be made by democratically-elected legislatures. Justice Scalia banged this drum in his dissent, and Judge Feldman picked up the theme. The problem with this argument is the same as with the federalism argument: legislatures don’t get to pass unconstitutional laws even in their mission of setting public policy.

Copyright (c) Jack L. B. Gohn

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Reader, I Married Her

Bebel, by Antonio Carlos Jobim, performed by Kenny Drew, Jr. (1991), “encountered” 1988

Available on Spotify | Buy it here

The pace was picking up between Mary and me now. At some point I would need to declare myself, and say some words in a church. But it was still hard to bring oneself to that point. Declaring that readiness and saying those words in a church are daunting things to do, when you are coming off a divorce, when you know your own capacity for folly and destructiveness, when you do not entirely trust yourself. The bumpy landing just getting to exclusivity I wrote about last time was never far from my mind.

Season of Transitions

And yet, it was a season of transitions, and each one helped make the others more plausible in anticipation and easier in practice.

My divorce was final in mid-1986, and with it, certain uncertainties about my commitments were resolved. At around the same point, Mary moved closer, from Charlottesville to Washington.

That summer I also left, or as the phrase went, graduated from, group therapy. It was a tearful occasion, but Group was for people who had major things to learn that they couldn’t learn elsewhere, and/or who were stuck at some critical decision necessary to their happiness, and I had learned most of what Group had to teach; nor was I stuck. It was a tearful parting, but a parting nonetheless.

And in February of 1987, I bought a house. Before doing it, I visited the place with both my kids and Mary, all together; we consciously discussed the possibility of making a nursery in the house, and indeed our plan all along was for Mary to move in in the spring.

There was an obvious direction to all this. But still we hadn’t quite reached the point of making it official, even to ourselves. And then the final clarity began.

Step-Maternal Wisdom

That summer, I was visiting my wise stepmother Etta at the family vacation cottage in the Catskills, and her advice to me was succinct: “Take your time, but not too much time.” I think she was concerned about the bad things that might happen if I kept Mary waiting too long.

And shortly afterwards, I received what a lawyer might call a solicitation for a bid. I don’t recall the exact context (some kind of joking conversation), but do I remember exactly where Mary was standing (right next to the laundry hamper in the bedroom closet, if you must know). And Mary said: “But what have you done for me lately, like marry me?”

I let the remark pass, but it was clear that the time was at hand. My serious reservations were gone. I had known her for four years. We had been exclusive for a year or more, and I had been happier than ever.

Overcoming Nerves

And yet – and yet. As with many another guy, the proposal itself somehow stuck in my throat for a while, even when I recognized that I was simply having nerves, not the kind of qualms I had experienced the first time around (also written of in these pages). But qualms are for listening to, nerves are for ignoring. So one night I summoned my courage and took Mary to dinner at the place we’d gone on the night we met (a different restaurant at this point, but in the same space), and over preliminary drinks, I tried to get out my question. I’m seldom at a loss for words, but somehow I couldn’t quite say it intelligibly, even though I knew what the answer would be. It took a couple of indirect stabs before Mary recognized my proposal for what it was. But when she did, we held hands across the table. It was done.

From that point on, things moved with a lovely directness, at least as between Mary and me. There were external problems (completing the process of moving Mary in, finding a church that would stage a nuptial for two divorced, unanulled Catholics, dealing with my mother, a category of difficulty unto itself, and of course all the logistics of planning, which ended up taking about a year), but we dealt with them as an adult couple.

Beautiful

And when we got to the moment itself, in September of 1988, the ceremony was beautiful. Most weddings are beautiful, of course – though I’ve seen one so ugly and unhappy that it could only have been, and proved to be, a prelude to divorce. But our wedding, I’m convinced, was a classic: low-key and not marred by extravagance, but still elegant and filled with happy people. Well, something like that needed a song. But, atypically for me, there really wasn’t one to hand.

Thinking as an Artist

I reiterate a point I’ve made throughout these pieces: It has been by sheerest coincidence that I’ve come to associate most of the songs I’ve written about here with important moments in my life. I just happened to be listening to them when noteworthy things happened to happen. Very little artistry, indeed, very little volition has been involved. But at this paramount moment, I aspired to something more precisely right. By now I was thinking as an artist, specifically as a film director (even though that is not a medium in which I’ve ever tried to work in real life). I was dreaming of a movie about my recent life in which my remarriage would be the happy conclusion.[1]

I needed a song for the end credits. I did not see the wedding itself as the last shot; rather, it would be an image of fictionalized versions of Mary and me, shot from behind, walking away holding hands along a springtime street in the twilight, as the camera pedestaled up until finally all you saw, before the credits rolled, would be the blossoms in the trees. A very specific image, in other words, conventionally shot to tell the viewer firmly: happy ending.

I knew intellectually, of course, that life never gives us totally happy endings. Even the best marriages have their rough patches, and I was sophisticated enough now to expect that. But the hell with what I knew; this was about what I felt. And even before we married, what I felt was how incredibly lucky and happy I was to have Mary. There’s a sentence in George Gissing’s novel Sleeping Fires which summed up my feelings about her: “It was the woman whom a man in his maturity desires unashamed.”[2] And there I was, unashamed after a long process.

To capture all that, the song would have be something that began in a long and hesitant fashion, but then moved from diffidence to confidence, lyricism, and joy.

Reader, I Found It

I finally found that song in a music store a few years later while taking a needed extended lunch break from my job being a square peg at an outfit I’ll call the Round Hole Law Firm. There aren’t so many music stores now, but this one still (as of 2014) exists, albeit in a different location, catering now as then to a mainly African American clientele. And where better to stay on top of jazz? Periodically at that point I’d wander in and ask for something new and exciting. On this occasion, I was handed a self-titled cassette album: Kenny Drew, Jr. Drew played a very dominant piano in front of a trio for much of the album. I’d never heard of Kenny Drew, Sr. or Jr., so the name meant nothing to me.

When I played it, I liked a lot of it and didn’t like a lot of it. (Some of the boppier numbers struck me as nearly cacophonous.) But there were a couple of lovely things in there, one of which was Bebel. I didn’t know then what the name portended; for some reason I even failed to note that the song was written by Jobim, the king of the bossa nova.[3] I just knew the song was one of the coolest things I’d ever heard. It opens with a full minute of the piano hesitantly picking a melody, two notes at a time, staggering uncertainly up and down the octaves, as if it is trying to make up its mind about a key and a register and a melody, but then there comes a moment when the melody finally commits. Then it starts to flow, smoothly, inventively and elegantly, for another five minutes, in a style reminiscent of Brubeck or Luiz Eça, each of whom I’ve written about in these pages.

The song was perfect, actually far more perfect than Jobim’s original, which lacks much of Drew’s hesitancy or dramatic contrast  – another way of saying Drew adds these things. (And Jobim’s voice can’t handle the vocal range Jobim the composer writes for Jobim the singer.)

So this was the Bebel to start with. And it captures, as no other song I encountered at that time, the wonder of that moment, when the most important part of my life came definitively together, when, having cleared aside every impediment, especially those within myself, I was able to ask for what I needed, and to say “I do” when I was given the chance to commit to it.

Reader, I married her.

And Bebel was the song.

________________

^[1] I was writing a novel at the time, or trying to, about how things fell apart, and how they came together again, on the model of C.D.B. Bryan’s quite autobiographical novel Beautiful Women, Ugly Scenes, which I still think is the best divorce-and-remarriage novel I ever read. According to a blog post by Bryan’s son, despite the fact that Bryan wrote screenplays himself and had some connections in the movie-making world, no movie-maker ever came calling to film that book. (Bryan died in 2009, so it seems as if the moment for that has passed.) But I think it would have worked outstandingly as a movie.

^[2]  1895, 1983 reissue by University of Nebraska Press, at page 15.

^[3] The song is not well-known in the U.S., I suspect because the original recording is late-period Jobim, recorded after the bossa nova craze had ended. If you read the lyrics, it seems to be a song about a somewhat generic young woman (Jobim wrote a few, as we know), perhaps crying because she is eager for love. I now strongly suspect the song was written for Bebel Gilberto (Bebel being in this case a nickname for Isabel), daughter of Joao Gilberto, today a performer in her own right, who debuted at age seven in an album with her mother Miucha and Jobim, but who was in her late teens when, in 1987, Jobim came out with the album Passarim from which this song is taken. If the song really was personal from Jobim to Bebel Gilberto, it seems a little creepy, being that he would have been about sixty at the time, and it predicts that when he kisses her on the mouth, it will make her dream about her future of falling in love. And actually, there is a touch of ephebophilia about The Girl from Ipanema, too, given that the subject is the sighing of older men, too old for the young woman passing through their midst, at the sight of her. (To be fair, the lyrics to that song were by Vinicius de Moraes, not Jobim.) For what it’s worth, Bebel has recorded The Girl from Ipanema with Kenny G. If Jobim ever creeped her out, that reaction is not much publicized.

Copyright (c) Jack L. B. Gohn, except for album artwork

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Full Faith and Accreditation

A shorter version of this piece was published in the Maryland Daily Record on August 18, 2014

In a rational world, a notion recently floated by Peter Conn in the Chronicle of Higher Education would provoke a serious debate whether to de-accredit many religious colleges and universities. This is not a rational world, and I don’t expect Conn’s notion to go anywhere. But a boy can dream. Mind you, I bear no hostility towards religious education as such; I am a grateful product of Catholic parochial grade and middle school. Nevertheless, I think Conn, an educator (at another of my alma maters, the University of Pennsylvania) has a point. But speaking as a lawyer, I fear Conn’s stance is constitutionally unsound.

Inerrantly Compromised

Conn’s argument first: There are a number of institutions that insist on the literal accuracy of Scripture. Conn writes of “Christian colleges that require their faculty members to sign a ‘faith statement,’ consenting to such scientifically preposterous propositions as, for example, that God created Adam and Eve, who were real historical figures and who are the actual ancestors of all humanity.”

I think Conn may slightly overstate his case here; all the mandatory faith statements I have found in my researches are a little less specific. For instance, Illinois’ Wheaton College, an entirely representative institution, requires its faculty to sign a faith statement which provides, in relevant part: “[T]he Scriptures of the Old and New Testaments are verbally inspired by God and inerrant in the original writing, so that they are fully trustworthy and of supreme and final authority in all they say.” Nothing there specifically addresses Creation or Adam and Eve. Nonetheless, it is fair to infer from the word “inerrant” that subscribers are endorsing the literal truth of the account in Genesis. And it is also fair to infer from “supreme and final” that in any clash between Genesis (literally understood) and science, the subscriber is committed to dismissing science, specifically including what we know about the age and the formation of the cosmos and the development of life on this earth.

The issue is not with what professors at these schools may happen to believe; it’s with the requirement of a commitment in advance to believe it, no matter what. Conn maintains, and I agree, that professors making such a pledge are thereby “intellectually compromised,” and their institutions along with them.

Not Equally Valid

I say this though I agree that it is arguable that revelation is a different way of knowing, and that scientific method may ultimately be no more provable, epistemologically speaking, than revelation. Hence in some sense the two may stand on an equal footing. But what institutions with a faith pledge seem to be espousing is not a clean-cut and perhaps epistemologically equally valid choice. Rather, they too wish to follow science – except where it clashes with revelation, as they construe it.

For instance, I note that Wheaton’s course catalogue has a class in “Earth History and Stratigraphy.” I fail to see how such a course could be offered as serious science without acknowledging that Genesis is scientifically inaccurate. In fairness I would also note a paper in which a member of the Wheaton Geology Department actually rejects the “Young Earth” geology that a literal reading of Genesis effectively demands. Still, the fact remains that the Wheaton pledge and many others like it would seem to dictate the embrace of Young Earth geology, a school of “scientific” thought that would never have been thought of in this era but for the desire to see Genesis supported.

This is the problem, then: if there is an epistemologically satisfying explanation of how scientific method somehow loses its validity when, and only when, it happens to clash with Scripture, I have not heard of it. Absent such an explanation, I must conclude that that approach misapplies scientific method. Science does not acknowledge exceptions. Science assumes that the rules of nature (and thus of nature’s God) do not neatly stop wherever ancient documents written by non-scientists say they do. Therefore, however an institution may explain itself, if it tries to force anyone to say that science makes exceptions like this, that institution has declared war on science, whether it admits the fact or not. And educational associations should be able to defend themselves and science against such an attack.

Accreditation a Defense?

And that is where accreditation comes in, says Conn.

Accreditation is the way academia draws boundaries. Only schools that fit accreditation criteria are admitted. The criteria drawn up by the various accrediting associations all, in one way or another, enshrine the values of open inquiry and teaching. A typical example: the Higher Learning Commission of the North Central Association of Colleges and Schools requires (among numerous other criteria) that an accredited “institution [be] committed to freedom of expression and the pursuit of truth in teaching and learning.” Thus, to the extent the North Central Association accredits institutions like Wheaton College, it is undercutting its own stated criteria. If it takes those criteria seriously, the Association ought to be excluding the Wheatons – says Conn.

As a former academic, I would agree, but as a lawyer I confront certain questions. If Conn’s idea were put into practice, wouldn’t that be state action against religion, a violation of the Free Exercise clause of the First Amendment?

Maybe not. Though public institutions are part of the North Central Association, it is a private organization. Private groups are not bound by the First Amendment. That is one way to look at it.

State Action?

On the other hand, the single most important impact of accrediting organizations is their role as gatekeepers to federal financial aid to students under the Higher Education Act of 1965. Generally, if your institution is not accredited, your students won’t get federal grants or loans. So HEA has effectively rendered a handful of “private” accrediting organizations the gateway to governmental largesse. First Amendment state action has arguably been delegated to private actors. Does it stop being state action simply because the delegated actor is “private”?

Up till now, the cases that have addressed the matter seem to have said that, at least at the college level, accrediting associations are not state actors.[1] In fact the North Central Association itself was held not a “state actor” back in 1967,[2] around the time that the federal student loan program started (though any role of accreditation in the then-nascent student loan program was not raised in that case).

And yet there is some judicial discomfort with this conclusion, as there should be. In a 2002 case involving Auburn University, the Northern District of Georgia held an accrediting association to be subject to a due process requirement, just as if it were a state actor, and precisely because of the student loan issue.[3] The court called the status of accrediting associations as non-state actors a “legal fiction.” And if due process applies, why not the Free Exercise clause as well? Then too, the Supreme Court has held a state high school athletic accrediting association to be a state actor.[4]

So I think there’s a good case to be made that the accrediting associations are state actors, and the Auburn case may be a portent of future recognition of this reality. And if I’m right about that, then it would be hard for accrediting associations to do what Conn suggests, and de-accredit the faith-pledge schools.

The Science Subjugation Restoration Act

The Religious Freedom Restoration Act of 1993 (RFRA) ordains that laws of general applicability impeding the free exercise of religion must spring from a compelling justification, and the recent Hobby Lobby case has made it clear that RFRA governs federal programs like the Affordable Care Act. Surely the Higher Education Act would also be subject to RFRA. If accrediting associations acting as gateways to the federal student loan program were recognized as state actors, they would be subject to RFRA and its compelling-justification test too. And under current market conditions, I don’t think exclusion of faith-pledge institutions from accreditation and hence from student loans could meet that compelling-justification test.

It might be different if there were few or no institutions where science overruled faith. There might be an argument that we had to save science. But there is no such scarcity. Anyone who qualifies can obtain a loan to attend an institution where real cosmology and real biology trump Genesis. As irritating and irrational as I find these faculty faith pledges, then, I cannot see how they threaten the viability of scientific research and pedagogy. All they are likely to do is poison the academic reputation of the scientists who teach at these schools, and of the students who graduate from them.

What Remains

There still remain ways to separate out those scientists who have compromised themselves by taking the oath. No respectable scientific journal need publish papers by them – at least papers which contradict accepted scientific knowledge and methodology. They need not be given a forum at academic conferences if they wish to use them to espouse anti-scientific views. And their students, at least those in scientific fields affected by the pledge, need not be recognized as having been properly trained.

That may be all the Constitution permits, but it should be sanction enough.

[1]. See McKeesport Hosp. v. Accreditation Council for Graduate Med. Educ., 24 F.3d 519, 520 (3d Cir. 1994); Transp. Careers, Inc. v. Nat’l Home Study Council, 646 F. Supp. 1474, 1478 (N.D. Ind. 1986).

[2]. Parsons Coll. v. N. Cent. Ass’n of Colleges & Secondary Sch., 271 F. Supp. 65, 66 (N.D. Ill. 1967).

[3]. Auburn Univ. v. S. Ass’n of Colleges & Sch., Inc., 489 F. Supp. 2d 1362, 1373 (N.D. Ga. 2002), relying on Brentwood (see the next note.)

[4].  Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 121 S. Ct. 924, 926, 148 L. Ed. 2d 807 (2001).

Copyright (c) Jack L. B. Gohn

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Facing Moral Dilemmas in a Crumbling Garage – NORTH OF THE BOULEVARD at CATF

Jamil A.C. Mangan and Brit Whittle

Posted on BroadwayWorld.com July 21, 2014

Note: The Contemporary American Theater Festival each year produces five new American plays in Shepherdstown, WV (an hour and a half from Baltimore) Wednesdays through Sundays throughout July. This is a review of one of this year’s productions. Each will be separately reviewed in this space.]

It is 2008. Trip’s world is in full-fledged collapse. The garage he owns is facing competition from a new Pep Boys, his neighborhood is changing (African immigrants living across the street throw garbage on the lawn), his school-aged son has been badly beaten in a racially-motivated attack, and the principal of the school cannot be counted on to set matters to rights. A malevolent political boss has died, leaving Trip responsible to pay unrespectful respects. A tree, the last in the neighborhood, reportedly, has fallen and smashed through the wall of the garage. He has covered it over with an Obama campaign poster that bears the single word HOPE, an ironic choice in view of the essential hopelessness of the mostly white working-class denizens of his unnamed city. (I was thinking of Detroit when I saw the play, though the auto in the shop bore Pennsylvania plates, and playwright Bruce Graham is a Philadelphian.)

Trip (Brit Whittle) needs to get himself and his family “up north of the Boulevard,” to a more civilized neighborhood, but has no means to do so. And his companions are equally trapped. Old man Zee (Michael Goodwin) hangs out at Trip’s shop because no other business will allow him in the door; he’s even been kicked out of McDonald’s. Zee’s son Larry (Jason Babinsky), a hapless-seeming young man, has an insane and risky plan to beat life’s evident plan for him by running for political office against the machine, but he cannot manage to obtain a single signature on his candidacy petition. Security guard Bear (Jamil A.C. Mangan), the improbable African American member of the circle (improbable because companion Zee is odiously racist and because Bear himself adheres to right-wing political views), refers to a box full of McDonald’s cups with Monopoly sweepstakes pull-off tabs as his 401(k) plan.

Then an unexpected circumstance dumps an opportunity in Trip’s lap. The only problem is that, to take it, Trip would need to leave his integrity behind and possibly risk going to jail. Is getting north of the Boulevard worth it for Trip and his buddies? Does Trip even have a meaningful choice? These are the questions Graham’s play poses, topical questions indeed in a world where the middle class is being hollowed out and the working class is being pounded.

As I’ve written elsewhere, at the Contemporary American Theatre Festival in Shepherdstown, WV, which is apparently giving this play its second outing, it becomes clear which plays are finished products and which still need more work, and this is definitely one of the “needs more work” variety. Act Two, where Trip’s opportunity becomes clear and he and his colleagues have to decide whether they’re going to risk taking it, works well. But Act One, by common consent of every attendee I spoke to, is a mess: too many negligible plotlines, too much exposition, too much chaos of characters talking over each other, too much information delivered obliquely. By the time the audience finds its sea legs, the act is over.

Bruce Graham shared with the crowd at a playwrights’ forum that he had worked in standup comedy, and it shows in this material. There are lots of wisecracks, and the profane cynicism of the characters has a standup sensibility. For instance, Bear comments on a children’s classic:

This is funny, all right, but it doesn’t tell us much about Bear’s personality, and it doesn’t observably advance the plot or the theme. As it happened, not too long before seeing Graham’s play, I’d attended a revival of The Odd Couple, which, though a bit dated, also has a strong helping of the same standup sensibility. But Neil Simon knows how to hitch the quips to the plough and use them to pull the play along. And as I watched Graham’s work I could not help but wish that Graham when revising would emulate how the master does it. But just some work to clarify and declutter Act One will do plenty to help the play.

As always at Shepherdstown, there is absolutely nothing but good to say of the performances. Brit Whittle, who also has a variety of very different roles in another CATF play this season, brings a weary but possibly limited decency to the role of Trip. Jason Babinsky, who is also to be seen doing something completely different in that other play, makes the most of portraying an adenoidal schlemiel who just may be onto something for once. Goodwin and Mangan are also unexceptionable.

Also worthy of superlatives is the set by David M. Barber. I can’t say I’ve ever seen another play set in a working garage, but if I had, I bet I’d have found this one more convincing, incorporating a complete slightly derelict-looking automobile. There are plays that just work better with a hyper-realistic set, and this is one of them. I think, in the past couple of years, I’ve only seen one set to equal it, John Lee Beatty’s creation for The City of Conversation at the Lincoln Center (a meticulously-detailed cross-section of most of the first floor of an elegant Georgetown home), doubtless realized with a far greater budget.

Despite the work it still needs, North of the Boulevard is worth a look. The dilemma it poses is one for these troubled times, much of the bitter laughter it provokes is telling, and the acting and the set redeem much.

Copyright (c) Jack L. B. Gohn, except for production photo

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