Like many a
law professor, writing a novel has long been an item on my bucket list. For most of us, that’s just where it stays -–
a promise left unfulfilled. But finding
myself at a point somewhat in between projects (with a major empirical study
complete and article manuscripts in the editorial pipeline), I determined last
year to bring my novel manuscript to completion, given that the story had been
outlined ten years before, with various scenes sketched out over the ensuing decade.
The result, “Marital Privilege,” is a novel
with distinctly Catholic sensibilities (focusing on devout Catholic mother who
struggles to maintain her faith after the death of her child), with connections
as well to the legal academy (the main character is, no surprise given the
author, a law professor) and the world of law and lawyers (populated by police,
prosecutors, defense lawyers, and judges and including courtroom scenes).
While I have
no illusion that this novel will become a classic assigned in college literary
classes in decades to come, I am pleased with the revised manuscript and
encouraged by the enthusiastic responses from test readers. If and when “Marital Privilege” finds its way
into print, I am hopeful it will have a special appeal to the faithful
followers of “Mirror of Justice.”
But “finding
its way into print” is much easier said than done. In terms of finding a publisher, I have been
following the traditional approach of contacting literary agents, which may yet
bear fruit. I recognize, however, the difficulty of making a connection
with a traditional literary agent through cold contacts by a novice author of
fiction. I am also considering regional publishers and other options.
Then I
thought of this “Mirror of Justice” community, which has been so generous to me
over the many years since its founding.
So I appeal to you for thoughts and possibilities of publication that
may not have occurred to me. If you have
an idea of a good home for this manuscript, kindly send it my way at “[email protected]”.
I've pasted
below a brief “query” description of the novel, in the style commonly used for
initial contacts with literary agents:
Nothing could be
worse for a mother than to witness the death of her young child -- and then to
be used by a politically-ambitious prosecutor who seeks to pin the crime on the
woman's own husband.
Candace Klein, a
young law professor in the Twin Cities, is one of the lucky ones in her
professional life, finding genuine meaning in her work. But her personal life
is troubled by a growing distance from her husband, Bill, who languishes in a
dead-end job working for her father. Then suffering the horrific loss of her
child, Candace grieves and seeks solace in her faith, while the criminal
investigation proceeds under the direction of a politically-climbing
prosecutor, Robby Sherburne, who pledges to secure the death penalty for a
child-killer. Lt. Ed Burton, a suburban cop, works diligently to follow the
evidence where it leads. As the evidence accumulates and her husband becomes a
target of the investigation, Candace resists becoming the instrument of her
husband's condemnation. She relies on the uncertain legal protection of the
"marital privilege" to refuse to testify, which ultimately provokes a
crisis of identity between her professional commitment to the justice system
and her resolute loyalty to her husband.
While offering
elements of a mystery, episodes of courtroom drama, and an underlying theme of
a woman's struggle to keep faith in the face of tragedy, MARITAL PRIVILEGE may
perhaps best be categorized as falling on the line between literary and
mainstream fiction. Although this
manuscript was completed before recent tragic events in New England, the story
of a mother finding her way after the loss of an innocent may resonate with a
wider audience today. The manuscript is complete at 79,000 words.
MARITAL PRIVILEGE is
my first foray into law-related fiction. As a law professor holding an endowed
university chair, I have published three non-fiction law books with such
leading legal publishers as Thomson-West and Foundation Press. I have also
published dozens of scholarly articles and other periodical pieces, including
many placements in top ten legal journals and reception of the annual Law &
Society Best Article Prize.
Following up on Michael P.'s post, a few days ago, about the brief that Doug Laycock, Marc Stern, and our own Tom Berg did in Perry and Windsor, here is an update from Ryan Anderson on the array of amicus briefs that have been filed urging the Court to uphold both Prop. 8 and DOMA. One of those briefs was co-authored by our own Robert George.
Relatedly, a friend passed on this short news (??) story, "Justice Kennedy Notes Power Shift to High Court." A bit:
Justice Anthony Kennedy says he is concerned that the U.S. Supreme Court is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration.
The 76-year-old associate justice said Wednesday that major policies in a democracy should not depend "on what nine unelected people from a narrow legal background have to say."
Sunday, March 10, 2013
SPRED is an organization near & dear to my heart, and I was so happy to see that they're being recognized this year by Notre Dame:
Sister Susanne Gallagher, S.P.; Sister Mary Therese Harrington, S.H.; and Rev. James H. McCarthy, founders of the Special Religious Education Development Network (SPRED),
will receive the University of Notre Dame’s 2013 Laetare Medal, the
oldest and most prestigious honor given to American Catholics, at Notre
Dame’s commencement this May.
“Sisters Gallagher and Harrington and Father McCarthy have summoned
the Church to a crucial and too often overlooked ministry,” said Notre
Dame’s president, Rev. John Jenkins, C.S.C. “Insisting that a developmental disability neither tempers Christ’s
invitation nor restricts one’s right to respond, they have ushered
countless people to their rightful place at the Eucharistic table.”
Saturday, March 9, 2013
Come on over to Santa Clara University this Thursday, March 14. My lecture is sponsored by SCU's Ignatian Center for Jesuit Education. Information
here.
Friday, March 8, 2013
I want to talk to you about the Free Exercise Clause. This post is long.
My view of the Free Exercise Clause is one part of a larger approach to constitutional adjudication
involving the religion clauses. For those who have been thirsting feverishly to know more about that approach, fear not: soon enough, I will flood the zone. Suffice it for now to say that one of the most serious criticisms of my approach is that it is insufficiently predictable. It is sometimes said, not without reason, that my approach is not rule-like enough, and that it is therefore damaging to rule of law values.
These are fair criticisms, and I do my best to address them. I do this in part by taking a close look at the way in which a selection of state, federal district, and federal intermediate appellate courts have applied that putatively most rule-like of all religion clause rules: neutral laws of general application do not violate the Free Exercise Clause.
What I find is: that rule is not nearly as inviolable as many who invoke it believe. In fact, knowing when that rule will apply actually depends on having the sense of a host of context-dependent and issue-specific factors. The trouble, as I have explained before, is the issue of general applicability. Employment Division v. Smith carved out the unemployment compensation cases from its holding. But, per this amicus brief, it is more accurate to think about this carve-out not as an "exception" but as a corollary to the rule itself, which creates a kind of graduated spectrum of general applicability. Laws which are not "generally applicable" are lifted out of the Smith "rule" and receive judicial balancing. How do we know when a law is not "generally applicable"?
It falls to courts to determine what "generally applicable" means along the spectrum. It cannot mean that the law has no exceptions, period; that would destroy the rule. And yet "generally applicable" must mean something. What it means is the subject of judicial interpretation--for now, very much in the common law style. And that means that the Smith rule is much less predictable than its supporters suppose: "If the vice of pluralistic approaches is that they are predictable only to those who know how they will be applied, that is no less true of monistic approaches." Chapter 8, The Tragedy of Religious Freedom. That is not enough, by itself, to convince you to adopt my approach. For that, you need to buy the book!
Here is a brand new HHS Mandate case to show the predictable unpredictability of Smith, Geneva College et al. v. Sebelius, decided Wednesday by the U.S. District Court for the Western District of Pennsylvania.
Continue reading
An excellent column by David Brooks this morning on the rising strength of New York City's Orthodox Jewish Community. One highly relevant feature of his piece is the importance of law as a structure that limits choice, and of the beneficent constraining power of law. You should read the whole piece. But by far the sharpest line in it is not Brooks's, but belongs to Chief Rabbi of the British Commonwealth Jonathan Sacks: "The Torah is an anthology of argument with a shared vocabulary of common restraint."
An analogy is made here (by Brooks and Rabbi Sacks both, it seems) to constitutional law -- that is, a conceptual connection between the shared cultural norms of a common tradition and norms of constitutional interpretation and adjudication. Amen.
Mark Rienzi's new paper -- which is certainly timely and important, in light of the ongoing HHS-mandate controversity -- is up at SSRN. Here's the abstract:
Is there a religious way to pump gas, sell groceries, or advertise for a craft store?
Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection.
This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.
Many religions impose, and at least some businesses follow, religious requirements for the conduct of profit-making businesses. Thus businesses can be observed to engage in actions that are obviously motivated by religious beliefs: from preparing food according to ancient Jewish religious laws, to seeking out loans that comply with Islamic legal requirements, to encouraging people to “know Jesus Christ as Lord and Savior.” These actions easily qualify as exercises of religion.
It is widely accepted that religious freedom laws protect non-profit organizations. The argument for denying religious freedom in the for-profit context rests on a claimed categorical distinction between for-profit and non-profit entities. Yet a broad examination of how the law treats these entities in various contexts severely undermines the claimed categorical distinction. Viewed in this broader context, it is clear that denying religious liberty rights for profit-makers would actually require singling out religion for disfavored treatment in ways forbidden by the Free Exercise Clause and federal law.
Check it out!
