Debora Threedy has premiered her plays THE END OF THE HORIZON, WALLACE (co-written with Jenifer Nii), THE THIRD CROSSING and ONE BIG UNION at Plan-B, as well as contributing to several SLAMs and (IN)DIVISIBLE. Her latest play, BALTHAZAR, will be read as the final free reading of this season’s Script-In-Hand Series on Wednesday, April 3 at 7pm. Click here for free-but-required tickets.

My play, BALTHAZAR, is in conversation with THE MERCHANT OF VENICE. In Shakespeare’s play, Balthazar is the name Portia uses when she goes to court dressed as a man.

(In case you are in need of a refresher: In the play, the merchant Antonio borrows money from Shylock, who as “a merry jest,” asks for a pound of Antonio’s flesh if he defaults on the loan. Antonio borrows the money to give his best friend Bassanio so that Bassanio may woo the rich heiress Portia in style. Bassanio wins Portia, Antonio defaults on the loan, and Shylock demands his pound of flesh. Portia offers to repay the loan but Shylock won’t take her money. She then dresses as a man and goes to court where she defeats Shylock. Everyone lives happily ever after – except Shylock, of course, who basically is convicted of plotting Antonio’s death and punished accordingly.)

I am  – or was, I’m retired now – a law professor and the genesis of this play came when I was doing research for an academic article about Portia.  In the midst of this research, one day this thought popped into my head:

When Portia goes to court, I don’t think it’s the first time she cross-dressed.

It takes practice to pull off a successful cross-dress. She would be foolishly reckless to try presenting as male for the first time when a man’s life is at stake. So the play began as an exploration of how and why Portia was cross-dressing before she ever thinks of going to court.

Portia has been an important figure for women lawyers. When I was in law school, women lawyers referred to themselves as Portias. Law review articles appeared with Portia in the title. Her Quality of Mercy speech was held up as an example of Carol Gilligan’s work on how women speak “in a different voice,” which (controversially) equated “mercy” with the feminine and “justice” with the masculine.

One of the reasons Portia resonated with women lawyers then, in the late seventies when women were first entering law schools in more than token numbers, is because she has to disguise herself as a man in order to enter the courtroom. Many young women lawyers felt that way; I know I did. There was a dress code back then. You wore a tailored suit, with a jacket, a vest, a shirt with a (floppy) tie, and a skirt instead of trousers (trousers, ironically enough, were verboten – in Chicago at that time a woman lawyer, a POC, was thrown out of a courtroom for daring to show up in a tailored pantsuit – oh, Hillary, how far we’ve come).  In addition, to be taken seriously in court, you had to present and talk in a way that was not typical for women in general, more formal, more rational, more detached. It felt like a disguise and what was being disguised was femininity. My mother, bless her heart, was attuned to this rejection of femininity and rebelled in her own way – for my birthday she bought me a three piece suit – in pink. (This was, by the way, more than twenty years BEFORE Elli goes to court wearing that pink ensemble in Legally Blonde.) So Portia masking her gender with a male disguise was something we knew firsthand.

And of course there were those who wondered (including at times ourselves) if women who wanted to be lawyers were somehow less than real women. Portia has very practical reasons for wanting to appear as a man but she wonders what it is about herself that makes that disguise so attractive to her.

Then there’s Bellario, her cousin. He never appears in MERCHANT, though Portia sends to him to help her prepare for court and to lend her his robes for her court appearance. Which led to another question – why would he, a respected lawyer, be willing to help Portia deceive the court? Well, I thought, she is breaking gender norms (and breaking the law as well – a woman dressing as a man was considered witchcraft and was punishable by death) – what if Bellario is also an outsider when it comes to norms of gender and sexuality, what if he is gay? (Of course the concept of gayness as we understand it would not have existed in the Renaissance, but homosexuality certainly did – and was also a crime under the law.)

There is a whiff of same-sex attraction that floats through MERCHANT. When Antonio first appears on stage, he complains that he is, in modern terms, depressed (“I know not why I am so sad”). Later, he refers to himself as a tainted wether – a castrated ram. He is not married, he’s childless, and his most significant emotional connection is with Bassanio, soon to be Portia’s husband. So Bellario being gay made sense in terms of this undercurrent.

Cross-dressing, of course, was a part of Shakespeare’s world. The history of theater is a history of drag. Women couldn’t appear on stage in public until the Restoration so men have been impersonating women ever since the Greeks. Shakespeare pushes that to another level when his young male actors impersonate female characters who then impersonate young men.

The idea of “masking” appears in the play in another context besides gender. In Italy in the late Renaissance, wearing a mask in public became common place. What was once reserved for the misrule of carnival became the norm. There are theories about why this happened – for example, Venice (basically a bunch of small islands geographically confined by the sea) was extremely crowded and the theory is that the anonymity of going masked allowed a sense of privacy in public. A reading can’t do justice to this aspect of masking, but as I wrote the play I tried to find ways of introducing the wearing of a mask as normal part of everyday life, and to show how Portia’s masking as a man pushes the envelope beyond the ordinary experience of going masked in public.

In the course of my theater training, in my life before law school, I had a class in mask work, and it was a revelation. There is something very powerful about wearing a mask. Something freeing, but also something a little scary. Wearing a mask changes you, as it changes how people perceive you. The study of law changes you, too. Generations of law students have spoken of being transformed by their legal studies, and this was also my experience. Once you have studied law, you never look at the world in the same way again. And when people find out you are a lawyer, they perceive you differently. I can’t tell you how many times I have seen men visibly startle when they find out I’m a lawyer (usually in the course of mansplaining something legal to me). And even if on balance you find this a good thing, it is very unsettling.

There is a book by a distinguished law scholar, the late John Noonan, called The Mask of the Law. In it, Noonan criticizes the mask of impartiality that judges adopt. We don’t want judges deciding a case if they have a financial or personal interest in the outcome; in that sense of course we want impartial judges. But impartiality in the sense of being neutral to the outcome of a case is largely a fiction. Every judge brings with them to court the totality of their previous life experiences, their conscious and unconscious biases, their predilections, their ideas about how the world works. This has become more widely recognized than it was in the past and explains in part why the vetting process for judges has become so highly charged. Think of the Kavanaugh hearings – the fear for many was that someone who once treated women as sexual objects would be hard pressed to give cases involving a woman’s right to control what happens to her body, for example, a fair hearing in court. But if true impartiality is more of an aspiration than a reality, we still expect judges to recuse themselves when they have a direct interest in the case.

So when Portia goes to court she is doubly-masked. Her gender is concealed; she is disguised as a man. But she also appears in court as an impartial expert witness called in to help the Duke of Venice decide the case of Shylock v. Antonio. Yet she is anything but impartial. Her husband is Antonio’s best friend and it is because of him that Antonio is in the fix he is. She is unabashedly part of Team Antonio and she is determined to defeat Shylock. The mask of impartiality she wears in the courtroom scene complicates the picture of Portia as the heroine of the play. From the perspective of legal ethics, what she does with the masking of her self-interest in the outcome of the litigation is deeply problematic.

This is part of the reason that in the twenty first century there is a backlash against the conception of Portia as a way for women to see themselves as lawyers. In a world where women’s lives were so constrained by gender we are willing to overlook, even applaud, Portia’s gender deceit – but are we so willing to forgive her deceit in violation of the norm of impartiality? Moreover, Portia’s legalistic word play in court is pointed to as an example of all that is wrong with lawyers, manipulating the law, bending it to their will. And the complete destruction of Shylock at her hands is pointed to as the antithesis of mercy. So while at the beginning of the process of writing this play, I identified with Portia’s masking of her gender, by the end I was trying to understand a Portia who struggles with the ethics of what she’s done by manipulating the law to save Antonio’s life.

Because make no mistake, skillful lawyers do in fact manipulate the law. One of the things that novice law students find hard to grasp is that the law is mutable. Lawyers, and not just legislators or judges, make law with every case they argue. The changes to the law may be barely perceived in any individual case but accumulate over time. And just as scientists have to grapple with the question of whether they should do something just because they can – make a bomb capable of wiping out a city, editing the genes of unborn children – ethical lawyers have to grapple with whether they should make certain arguments just because they can. Arguing that waterboarding isn’t torture as defined in the Geneva Convention, for example.

This play, more than any other play I’ve written, is a play of ideas and it is a play informed by my journey through law as a woman in law, by my evolution as a scholar of women and the law. The challenge of finding an authentic womanhood in a world shaped by male privilege is a challenge even today; the constraints of gender in a patriarchal order where women earn sixty-eight cents for every dollar a similarly qualified man earns is still with us now.

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