Has this ever happened to you? You’ve just washed up on some beach, are nursed back to health by your new best friend, and you decide to take a look around. Suddenly, two hoodlums attack you — or try to; you’re much too macho for the room.
Then, a beautiful woman steps in, banishes your attackers, and begs you to come home with her. And what a home! Sure, she calls you “Cesario”, but what of that? You think maybe it’s a term of endearment. She gives you a pearl, and while you wander around in this magnificence, she comes up with priest in tow, so the two of you can get married. Later on, you find that she had mistaken you for your identical twin sister — the only identical twins of different genders in human history — who you thought was dead, and who has been disguised as a boy. But your new wife’s cool with it when she finds out, so you decide to go with the flow.
No? Me neither. But it did happen to Sebastian — his friends call him “the Sebster” — in Twelfth Night. Sadly, the marriage of Olivia and Sebastian has ended up like most whirlwind romances — in the courts, to be followed by rounds in the tabloids and on talk shows.
Maybe it’s a guy thing, but I would think that the Sebster would have some good defenses against any action Olivia might bring to annul the marriage on the grounds that Sebastian procured it by fraud. (1) He didn’t procure anything. He just stood around and let it happen. (2) He never committed fraud. He never said he was Cesario. If anybody committed fraud, it was his sister. (3) When Olivia found out that Sebastian was not his own sister, it didn’t matter to her. She celebrated Viola’s marriage to Orsino and let the party rage on — for a month. Thus she waived any claim to fraud against the Sebster.
That was pretty much how the lower court found it, thanks, no doubt, to the arguments of Sebastian’s formidable counsel — Dan Webb, late the U.S. Attorney for the Northern District of Illinois (i.e., Chicago and environs) and now co-executive chairman of Winston & Strawn LLP.
But he ran into a buzzsaw of an opponent in Hogan Lovells’ Cate Stetson Monday night, when she argued Olivia’s case before the Supreme Court of Illyria, in session at Shakespeare Theatre’s Harman Hall, and as a result the jury — 800 or so lawyers (amateur and professional) sitting in the audience — overwhelmingly found for the plaintiff, even as the Supreme Court itself decided it had no jurisdiction.
So it was at Shakespeare Theatre’s 2017 Winter Mock Trial, the company’s annual (sometimes more frequent) effort to expose the Bard of Avon’s work to trial by — well, trial by trial. The Bard Association, an organization of lawyers who think the Canon has not been sufficiently litigated, annually bring the City’s best lawyers before some top DC-area judges for further investigation of the legal aspects of the company’s plays. Was Hamlet not guilty by reason of insanity when he killed all those folks? Did Malvolio have a cause of action in dignitary tort when Olivia’s household tricked him into wearing yellow garters, and then threw him into some sort of kennel? Was Salomé, in ordering the execution of John the Baptist, acting within her royal authority?
This time around, Webb and Stetson argued before a panel that didn’t include any Supreme Court Justices (Ruth Bader Ginsburg, Samuel Alito, and Elena Kagan are regulars, but they appear to have been otherwise engaged on Monday) but was composed of formidable judges anyway — Chief Judge of the Court of Appeals for the DC Circuit Merrick Garland, who in calmer times would have been on the High Bench; acclaimed civil rights lawyer David Tatel, now a Judge on the same Court; Judge Thomas B. Griffith, also of the Court of Appeals for the DC Circuit and formerly chief legal officer of the Senate; DC Circuit Court of Appeals Judge Robert L. Wilkins, one of the prime movers behind the National Museum of African American History, and District Court Judge Ketanji Brown Jackson, a former Harvard Law Review editor who served as vice-chair of the US Sentencing Commission prior to her appointment to the bench.
Stetson’s argument took two paths. First, although Sebastian might not have been aware of the deception, he knew that his sudden ascendancy in this stranger’s heart was an unnatural development when he said, according to the record (i.e., Shakespeare’s text) “this may be some error.” He should have done the right thing, Stetson said — that is to say, when Olivia said, “Plight me the full assurance of thy faith/That my most jealous and doubtful soul/May live in peace.” (Act iv, scene iii), he should have said “Olivia, this has been great. And it’s not you, it’s me. Or…it’s not-me” instead of what he did. (“having sworn truth, ever will be true.”) id.
Her other argument was that Sebastian married Olivia not out of love but in an attempt to evade Illyria’s immigration laws. “He was saying, ‘I’m not throwing away my shot,'” Stetson sneered. “‘I’m young, soggy and hungry, and I’m not throwing away my shot.'”
Webb, a fearsome and highly successful trial attorney, largely stuck to his talking points. He was three minutes into his pitch when Judge Tatel interrupted. “I’d like to ask a jurisdictional question,” he asked.
“He’s a trial lawyer. They don’t know anything about jurisdiction,” Judge Garland stage-whispered.
Nevertheless, Tatel persisted. Isn’t the marriage between Sebastian and Olivia ultimately a political question, over which courts have no jurisdiction?
“Everything’s a political question,” muttered Judge Griffiths.
Tatel waited for his answer. “I’m a trial lawyer,” Webb replied finally.
Webb pointed out that Sebastian had announced his own name at the wedding ceremony, thus giving Olivia proper notice of his identity. And he also noted that Olivia had not brought suit for annulment until she had lived with the Sebster for a month, and therefore had waived whatever claim for deception she might have had. Finally, he poo-poohed Stetson’s immigration argument. “Who would want to live in Illyria?”, he asked, with citizens like Sir Toby and Andrew Aguecheek.
Tatel wasn’t finished. He asked whether the courts had constitutional authority to govern the free relationship between people, given the fact that the courts haven’t discovered the path to successful matrimony. Pointing to his wife in the audience, Tatel observed that “we have happily been trying to figure it out for fifty-three years.”
In a brief rebuttal, Stetson insisted that Olivia missed the part where Sebastian said his true name because she was distracted by a kerfuffle involving her wedding cake from “a lovely cake shop in Colorado.” (a reference to Masterpiece Cake Shop, Ltd. v. Colorado Civil Rights Commission, the case currently before the Supreme Court involving a cake shop which refused to provide a cake for a same-sex wedding reception.) She also performed an astonishing tour-de-force, rendering the entire proceedings, including questions from the judges and lawyers and answers to them in fourteen lines of rhyming couplets, done in iambic pentameter.
Moderator Abbe David Lowell of Norton Rose Fulbright US LLP used the time during which the judges deliberated to interview David Stacy, Director of Government Affairs for Human Rights Campaign. Lowell observed that Twelfth Night offered the unusual mixing of genders: since during Shakespeare’s time all roles were played by males, a male would masquerade as Viola, a woman, who in turn masquerades as Cesario, a male. Stacy, a close observer of the Masterpiece Cake case, noted that during Elizabethan times, same-sex couples were not rare, notwithstanding that under the statutes of Henry VIII, homosexuality was punished by death. This was actually rather moderate by European standards, Stacy said; in the Catholic countries torture and dismemberment, as a lead-in to execution, was the norm.
In the end, it was the jurisdictional question which resolved the matter for the judges. Judge Garland ruled that the court had no jurisdiction because the marriage was performed not by a real officiant but by Feste the clown. Judge Tatel concluded that the court had no jurisdiction over the human heart. Judge Griffiths found no jurisdiction on general principals. Judge Wilkins dissented, and would have found for Olivia. Judge Jackson (who had entered the Court garbed in Olivia’s mourning clothes) simply observed that as a District Court Judge, she had nothing to do with jurisdiction.
The non-decision may have been a disappointment to the cast, some of whom were sitting in the front rows. But Olivia’s adherents must have been buoyed by the results from the jury (tabulated by weighing red and blue tokens collected from the audience and weighed on a massive scales of justice by Lowell.) They fell heavily on the side of annulment.
For all the brilliant legal fireworks on display before the crowd, the litigants may have missed the crucial evidence in favor of Olivia. In the record at Act iv, scene i, Olivia says to Sebastian, “Nay, come, I prithee, would thou’ldst be ruled by me?” to which Sebastian says, “Madam, I will.”
As married men everywhere know, this is dispositive of the matter.
The mock trial was held Monday, December 11, 2017. The evidence is on display in Shakespeare Theatre’s production of Twelfth Night. Details and tickets.