That's Entertainment Dept.: (1) Right-wing Prop 8 nitwittitude, (2) Waiting for the "Big C" season finale

Sorry, the Big C clip seems to be iffy from the Showtime website. (Heavy pre-show use tonight, perhaps? I'm getting it OK in Firefox, but not in Safari.) But then, I wasn't going to watch it anyway! -- Ken


Showtime's preview for tonight's Season 2 finale of The Big C -- I'm not going to watch it till after I've seen the show, but you may be less fussy about the risk of having elements of the show spoiled for you.

by Ken

(1) REVISITING THE MODERN-DAY POLITICAL QUESTION:
ARE ALL RIGHT-WINGERS MENTAL DEFFECTIVES?

The New Yorker's Michael Schulman has a "Talk of the Town" piece in the new (October 3) issue, "Do-over," about a play that screenwriter Dustin Lance Black (Milk and the upcoming J. Edgar) has fashioned out of the transcripts of the San Francisco trial in which lawyers David Boies and Theodore Olson successfully pressed their case that California's Prop 8 same-sex marriage ban is unconstitutional. The play is called 8, and a star-studded reading was held last Monday in New York, with Morgan Freeman as Boies, John Lithgow as Olson, Bradley Whitford as hapless defense attorney Charles Cooper, Bob Balaban as Judge Vaughn Walker, Christine Lahti and Ellen Barkin as plaintiffs Kris Perry and Sandy Stier, Jayne Houdyshell as Maggie Gallagher, and the likes of Anthony Edwards, Rob Reiner, and Yeardley Smith as witnesses.

Schulman tells us that Black was present for 10 of the trial's 12 days of testimony (missing the others because of movie-project prep work), and his task in reimagining the proceedings in dramatic form --

was to shave down three weeks of material, some of it mired in legalese. "It's incredibly dense, and you have to communicate it in a way that is clear to an audience that hasn't gone through law school."

It's an entertaining piece, well worth your attention (and for once we've got a New Yorker item that's actually available free online). We learn, for example, that David Boies considered it "a real thrill to have Morgan Freeman play me," though he acknowledged that Ed Begley Jr., who played him in the HBO film Recount, looks more like him.

But the reason I bring this all up is for the sake of this exchange that Schulman reproduces.

David Blankenthorn, a marriage "expert" who was the defense's only witness, served as comic foil, as in this Abbott and Costello-like exchange, drawn from the cross-examination by the plaintiffs' attorney, David Boies:

Let me stress again that in broaching this question of whether all right-wingers are mentally defective, I am of course excluding those who who are unabashedly serving their personal economic or power-gathering interests, notably our beloved economic predators and powermongers and their associated stooges. For the rest, the evidence continues to pile up.


(2) COUNTING DOWN TO THE EVERYTHING-CHANGES
SEASON 2 FINALE OF THE BIG C, "CROSSING THE LINE"

The relationship between fellow clinical-trial subjects Lee (Hugh Dancy) and Cathy (Laura Linney) got off to a rocky start, to put it mildly.

Probably a good rule of thumb for folks in the trenches pitching new TV shows: If you're looking for something with the possibility of a long run and a profitable syndication package, you probably don't want to build your project around a terminally ill person.

This was obviously a problem, or at any rate a feature, built into The Big C (created by Darlene Hunt, who has written or co-written all 26 episodes to date). Considering how strong a bond the show's producers and writers and of course actress Laura Linney created between viewers and their Stage IV melanoma sufferer Cathy Jamison, it was good news that Showtime ordered a second season, but considering the show's basic premise, it is kind of term-limited. Sure, medical miracles happen, and we all hope that the clinical trial Cathy managed to get into this season will buy her some more time, still, this is supposed to be a show about a woman getting on with her life in the knowledge that the end is in sight. (Not in Season 2, though, since a Season 3 has been announced. So I guess that's not part of thehuge-surprise, everything-changes-type events Showtime has been promoting for the season finale, "Crossing the Line." I wish they wouldn't do that, or feel the need to do that. Let the show team do their damned show the way they want, and then have the network people market that to people who might enjoy it. )

For Cathy and husband Paul (Oliver Platt) and son Adam (Gabriel Basso) and Cathy's bipolar brother Sean (John Benjamin Hickey) and the assorted people woven into their lives, it's been another strong season of getting on with those lives, with more humor than one might think possible given the basic situation. But I thought last week's next-to-last episode of the season, "The Darkest Day," was especially strong in bringing us back to that central reality, and I doubt that I was alone in being overwhelmed by the death of Lee (Hugh Dancy), the "soul mate" Cathy discovered in the clinical trial being run by Dr. Sherman (Alan Alda).

As a side note, it's a tribute to the human dimension of the show that the two characters who have sent to meet their maker -- Cathy's eccentric neighbor Marlene (Phyllis Somerville) and now Lee, both of whom were introduced with decidedly hard-to-crack exteriors -- became so dear to at least this viewer.

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"It is time, indeed past time, that we accord [gays and lesbians] the basic human right to marry the person they love"

Famed liberal lawyer David Boies . . . oops, sorry, that's Ed Begley Jr. playing David Boies. Boies has a bit more hair.

"The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper sticker."

-- David Boies, in a WSJ op-ed piece today (see below)

by Ken

David Boies is known, not just as one of the country's leading trial lawyers, but as one of our hardest-core liberal legal eagles. He achieved a new level of notoriety as Gore campaign's chief lawyer in legal wrangling following the 2000 presidential voting -- not exactly his finest legal hour, of course, but with the Supreme Court "fix" in, it doesn't seem likely that in the end anyone could have done any better.

A lot of eyebrows were raised earlier this year when Boies and his opposite number in the Bush v. Gore legal wrangling, former Bush regime Solicitor General Ted Olson, announced that they were joining forces to mount a federal court challenge to California's recently passed Proposition 8, which amended the state constitution to ban same-sex marriage.

Olson is known as the bedrockiest bedrock of the D.C. right-wing legal establishment -- his Wikipedia bio notes that he " was present at the first meeting of the Federalist Society." It turns out that he is by no means as doctrinaire a right-wing loon, or at least not as strictly "party line" a right-wing loon, as many of us assumed, and he has deep feelings of an apparently libertarian nature in this area.

Today the opinion-mongers of the Wall Street Journal gave Boies space to explain "why Ted Olson and I are working to overturn California's Proposition 8." I think the whole thing is worth reading.

Gay Marriage and the Constitution
Why Ted Olson and I are working to overturn California's Proposition 8.

By DAVID BOIES

When I got married in California in 1959 there were almost 20 states where marriage was limited to two people of different sexes and the same race. Eight years later the Supreme Court unanimously declared state bans on interracial marriage unconstitutional.

Recently, Ted Olson and I brought a lawsuit asking the courts to now declare unconstitutional California's Proposition 8 limitation of marriage to people of the opposite sex. We acted together because of our mutual commitment to the importance of this cause, and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution's guarantee of equal protection and due process to all citizens.

The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it. In 1978 the Court (8 to 1, Zablocki v. Redhail) overturned as unconstitutional a Wisconsin law preventing child-support scofflaws from getting married. The Court emphasized, "decisions of this Court confirm that the right to marry is of fundamental importance for all individuals." In 1987 the Supreme Court unanimously struck down as unconstitutional a Missouri law preventing imprisoned felons from marrying.

There were legitimate state policies that supported the Wisconsin and Missouri restrictions held unconstitutional. By contrast, there is no legitimate state policy underlying Proposition 8. The occasional suggestion that marriages between people of different sexes may somehow be threatened by marriages of people of the same sex does not withstand discussion. It is difficult to the point of impossibility to envision two love-struck heterosexuals contemplating marriage to decide against it because gays and lesbians also have the right to marry; it is equally hard to envision a couple whose marriage is troubled basing the decision of whether to divorce on whether their gay neighbors are married or living in a domestic partnership. And even if depriving lesbians of the right to marry each other could force them into marrying someone they do not love but who happens to be of the opposite sex, it is impossible to see how that could be thought to be as likely to lead to a stable, loving relationship as a marriage to the person they do love.

Moreover, there is no longer any credible contention that depriving gays and lesbians of basic rights will cause them to change their sexual orientation. Even if there was, the attempt would be constitutionally defective. But, in fact, the sexual orientation of gays and lesbians is as much a God-given characteristic as the color of their skin or the sexual orientation of their straight brothers and sisters. It is also a condition that, like race, has historically been subject to abusive and often violent discrimination. It is precisely where a minority's basic human rights are abridged that our Constitution's promise of due process and equal protection is most vital.

Countries as Catholic as Spain, as different as Sweden and South Africa, and as near as Canada have embraced gay and lesbian marriage without any noticeable effect -- except the increase in human happiness and social stability that comes from permitting people to marry for love. Several states -- including Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont -- have individually repealed their bans on same-sex marriage as inconsistent with a decent respect for human rights and a rational view of the communal value of marriage for all individuals. But basic constitutional rights cannot depend on the willingness of the electorate in any given state to end discrimination. If we were prepared to consign minority rights to a majority vote, there would be no need for a constitution.

The ban on same-sex marriages written into the California Constitution by a 52% vote in favor of Proposition 8 is the residue of centuries of figurative and literal gay-bashing. California allows same-sex domestic partnerships that, as interpreted by the California Supreme Court, provide virtually all of the economic rights of marriage. So the ban on permitting gay and lesbian couples to actually marry is simply an attempt by the state to stigmatize a segment of its population that commits no offense other than falling in love with a disapproved partner, and asks no more of the state than to be treated equally with all other citizens. In 2003 the United States Supreme Court in Lawrence v. Texas held that states could not constitutionally outlaw consensual homosexual activity. As Justice Anthony Kennedy elegantly wrote rejecting the notion that a history of discrimination might trump constitutional rights, "Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

There are those who sincerely believe that homosexuality is inconsistent with their religion -- and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law.

Gays and lesbians are our brothers and sisters, our teachers and doctors, our friends and neighbors, our parents and children. It is time, indeed past time, that we accord them the basic human right to marry the person they love. It is time, indeed past time, that our Constitution fulfill its promise of equal protection and due process for all citizens by now eliminating the last remnant of centuries of misguided state discrimination against gays and lesbians.

The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper stickers.

Mr. Boies is the chairman of Boies, Schiller & Flexner LLP.

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