by John Stoltenberg
Watching Arguendo—an actual Supreme Court transcript staged cheekily for chuckles by Elevator Repair Service, the New York–based troupe specializing in literary vérité—is like watching a 70-minute Saturday Night Live sketch. The text faithfully depicts arguments before the Court in a 1990 case called Barnes vs. Glen Theatre, which litigated whether women dancing onstage for pay in a non-alcohol adult venue could do so without covering their nipples and vajayjays.
The august justices (played variously and hilariously by Mike Iveson, Vin Knight, Susie Sokol, and Ben Williams) are intent on drawing a definitive jurisprudential line. The ticklish issue before them: Can an Indiana statute requiring pasties and g-strings in public do so without compromising anyone’s right to free expression? Or does the First Amendment cloak what is otherwise buck naked?
If that setup sounds ridiculous, well, it is. Here we have our Constitution custodians stuck in legal limbo, obsessing over every relevant precedent that might possibly prove dispositive. (Stunningly animated projections designed by Ben Rubin make vivid their citation-littered quest.) And here we have before them two earnest attorneys, one (Mr. Uhl, the determined Ben Williams) arguing that the statute should be upheld, the other (Mr. Ennis, the flustered Mike Iveson) arguing it should not. Though the argumentation on the record is tedious and tendentious, the romp on stage at Woolly Mammoth Theatre Company plays like a lively lampoon.
Ultimately (not a spoiler alert; this is juridical history, after all) five of the Supremes agreed that Indiana’s public indecency statute was “justified despite its incidental limitations on some expressivity” because it belonged to the long and honorable tradition of laws intended “to protect morals and public order.”
The statute in question contains the following definition of the nudity that is a no-no:
“Nudity” means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state.
In a prologue to the play, reporters conduct an on-camera interview on the courthouse steps with one of the dancers in the case, Rebecca Jackson (Maggie Hoffman), who testifies to the press about how she feels she’s expressing meaning when she dances nude, how that meaning would not be the same if she had to wear pasties and a g-string, how all fifty “girls” in the theater’s employ are married or have steady boyfriends, and how no hanky-panky is going on (i.e., no pimping or prostitution). She’s not under oath—this is not an oral amicus brief. But despite her dubious credibility, her pollyanna preface gets the show going amusingly.
There are many weirdnesses in the Glen Theatre nude-dancing case—many of which become running gags in Arguendo, directed adroitly by John Collins—but by far the weirdest is that the Supreme Court decided it on the basis of absolutely no showing of harm. There was never any claim or any evidence submitted that anyone ever got hurt by doing or watching nude dancing, and no mention of any ancillary downsides. The case was decided solely based on a vague and vaporous notion of morality. Justice Scalia said as much when he concurred with the Court’s prevailing opinion:
The purpose of the Indiana statute…is to enforce the traditional moral belief that people should not expose their private parts indiscriminately…. Moral opposition to nudity supplies a rational basis for its prohibition.
We have seen that line of argument fumble and fail a lot lately. Laws defended “just because”—just because they are time-honored expressions of “morality” (never mind whether more people are hurt by the laws than by the behavior prohibited)—are faltering right and left. We have seen, for instance, the lifting of strictures against sodomy, the demise of DOMA, and the uptrend in legal weddings between same-gender-loving partners.
There’s a kind of new enlightenment afoot in the land that insists on proof in public affairs, a conscious quest for clarity that sees through uninformed prejudicial presumption. As a citizenry, we are learning to ask: Is there actual harm to real human beings? Is someone hurt in a way that law could accurately prevent and remedy? Then let us refine our legal system to suit real purposes. Let us not simply pass laws that pass on inherited moralizing myths.
But the passage to this point has been messy—not least in the legal arena, where understanding proceeds by argumentation, as dramatically rendered in Arguendo. The whole Barnes vs. Glen Theatre case was a botch, a bad dream of democracy being stupid. If you think deeply about what went spectacularly wrong there, you might be bummed. But not to worry, Arguendo makes it sensationally silly and thoroughly fun.