by Grace Mead
The bright sun cast a shadow on the picnic table that interrupted Matt’s thoughts; he looked up to see Eric, who sat.
“So, the good news is that I haven’t lost my hearing,” Eric began, his expression grave.
“I didn’t know I should be worrying about your hearing,” Matt responded.
“Yeah, well, I’ve always felt I don’t hear as well as other people.” Eric said, then shook his head.
“And for how long have you had that feeling?” Matt asked.
“Maybe ten or fifteen years.”
“And, over those ten or fifteen years, did you ever consider going to—I don’t know—one of those people with white coats and stethoscopes.” A smile tugged at the corners of Matt’s mouth.
“Well, I never got around to it,” Eric said.
“Too busy shopping for workout clothes and picking Lisa up from the gym?” A smile had now broken out on Matt’s face.
“Something like that.”
“So, what’s the realization about your hearing now?” Matt asked, cocking his head to the side.
“About two months ago I bought premium Chinese earbuds for my iPhone online. They were really highly rated, and cheap, but not so cheap I didn’t believe the ratings. Over the last few weeks, I’ve found it harder to hear out of my left ear. I thought maybe it was wax, and, well, I won’t go into detail about how I ruled that out. But it finally occurred to me last week that maybe it was the headphones. I tried an old pair and—sure enough—it was the headphones.” Eric said, with his hands outstretched and palm raised.
“So are you going to demand your money back? Rumor has it that some people trust you with multimillion-dollar negotiations.”
“Hell no,” Eric said. “I don’t want to spend my free time doing that. I stopped negotiating for fifty bucks years ago. I’m just thrilled my hearing’s fine.”
Matt barked out a laugh and a snort escaped. Looking around, he saw friendly faces and he reached out to hold Eric’s hand under the table.
Eric’s eyes widened. “Is this safe?”
“Yeah,” Matt said. “Live a little.” With the sun directly above, baking those in the park, it began to sprinkle. “You know,” Matt said, “whenever it used to rain while the sun was shining, my Mom used to say it was so beautiful the devil must be so mad he’s beating his wife.”
“Yeah, that’s an old country expression,” Eric said.
“Oh really? Did you learn it on Martha’s Vineyard or in the uptown part of New Orleans?” Matt smiled.
Eric squeezed his hand. “Shut up and just enjoy it in case it really starts to rain.” Matt nodded.
A couple of months later, Matt sat in the prison library as Reggie plodded through a reader when Luther burst around the corner, stuttering to a stop. He waved stapled papers and said, “Mr Farrar just emailed this to me and told me to get it to you fast.” He placed the papers in front of Matt on the table.
It was a slip opinion from the United States Supreme Court entitled Durant v. Louisiana. Matt felt his stomach drop to the table; he couldn’t believe how quickly the Court had decided. Lightheaded, he lifted it with shaky hands and flipped past the preliminary pages to scan the opening paragraph:
Our Fourteenth Amendment Due Process jurisprudence protects criminal defendants from being tried by jurors who have prejudged them as morally blameworthy. We need not and do not reach the issue of whether homosexuality is a protected class under the Equal Protection Clause to decide this case. Just as it would violate due process for a trial court to permit an African-American defendant to be tried by a jury including an admitted racist, a female defendant to be tried by a jury including an admitted sexist, or a Caucasian American to be tried by a jury including a black nationalist who hates whites, it is unconstitutional for a trial court to permit a gay defendant to be tried by a jury including an admitted heterosexist. Such a trial violates the Fourteenth Amendment’s guarantee of due process of law.
Emboldened by that paragraph, Matt turned to the final page and read: “The judgment of the Supreme Court of Louisiana is reversed and the case is remanded for a new trial not inconsistent with this opinion.”
On reading it, he realized he would have another chance to prove his innocence.
Matt wept.
Questions
I hope that Defense of an Other entertains as a legal thriller, but I also intend for it to be more. In reading books on writing fiction, John Gardner’s The Art of Fiction: Notes on Craft for Young Writers (Vintage Ed. 1991) resonated with me most. Gardner writes of moral fiction and how the writer’s subconscious influences the text, and as I wrote successive drafts, I interpreted and understood this novel in different ways. I’d be interested in others’ interpretations and thoughts on some questions and issues that I’ve focused on in writing and rewriting the book:
Who are the heroes and why?
Who are the villains and why?
Do you think Matt self-handicaps? When? Why?
Is Matt self-loathing? When? Why?
How do the two scenes involving LSU football compare to the scene involving the convict rodeo?
Politicians often describe judges like Justice Antonin Scalia as strict constructionists, while lawyers tend to describe them as originalists, meaning that they look to the constitutional text first and then how a Constitutional provision was understood and applied immediately after it was drafted and ratified. Article I, § 2 on the eligibility requirements for serving as president provides that “neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years.” What would it mean to strictly construe that language?
The Fourteenth Amendment makes it unlawful for any state to “deny any person within its jurisdiction the equal protection of the laws.” What would it mean to strictly construe that language?
Why wouldn’t the framers of the Fourteenth Amendment lay down specific rules in the Fourteenth Amendment rather than requiring “equal protection of the laws”? For example, why didn’t the framers just forbid the states from discriminating against African-Americans in employment decisions, in setting qualifications for public office, in jury selection and in other specific situations?
Why would the framers of the Fourteenth Amendment draft it to protect “persons” rather than just former slaves or African-Americans?
Given that women did not even have the right to vote at the time the Fourteenth Amendment was drafted and ratified, does it guarantee them “equal protection”?
Given that public school segregation was widely practiced and at least some supporters of the Fourteenth Amendment also supported segregation when the amendment was ratified in 1868, is school segregation constitutional?
Does it change your view that, after the Fourteenth Amendment’s ratification, many of the congressmen and Senators supporting it argued it also required passing separate legislation forbidding public school segregation and partially did so in the Civil Rights Act of 1875?
Does the fact that many ratifiers believed separate legislation was necessary to forbid school segregation tell you anything about whether the courts then had the power to forbid school segregation or whether it was the responsibility of Congress?
Does your answer change when you consider that Section 5 of the Fourteenth Amendment provides: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article”?
Does it change your view that, by the time the Fourteenth Amendment was drafted and ratified, Supreme Court precedent had established for sixty-five years that the Court had the right, power and obligation to strike down unconstitutional laws because, as Justice Marshall explained: it “[i]s emphatically the province and duty of the [courts] to say what the law is,” Marbury v. Madison, 5 U.S. 137 (1803)?
In the debates over whether the Fourteenth Amendment should be ratified, some sponsors argued that the Equal Protection Clause embodied an anti-caste principle. Senator Howard said it was designed to “
abolish[…] all class legislation in the States and do away with the injustice of subjecting one caste of persons to a code not applicable to another.” Does that change your opinion of whether the Fourteenth Amendment forbids racial segregation in schools? Does it change your opinion of whether the Fourteenth Amendment forbids discrimination against women because of their sex or gender? Does it change your opinion of whether the Fourteenth Amendment forbids discrimination against queers?
Should judicial nominees, particularly for the Supreme Court, refuse to answer whether critical United Sates Supreme Court cases, such as Brown v. The Board of Education, 373 U.S. 483 (1954), or decisions extending the Fourteenth Amendment’s Equal Protection Clause to gays or women, were correctly decided during their confirmation hearings?
Should judicial nominees, particularly for the Supreme Court, refuse to answer whether critical United Sates Supreme Court cases, such as Brown v. Board of Education, 373 U.S. 483 (1954), were correctly decided during their confirmation hearings based on the theory that they would risk prejudging cases that could come before them as justices?
If so, should judicial nominees be required to describe any opinion they’ve previously expressed to others—even if only verbally—about whether critical United Sates Supreme Court cases, such as Brown v. Board of Education, 373 U.S. 483 (1954), were correctly decided to determine whether they have expressed an opinion that could be interpreted as prejudging a dispute that might come before them?
Is someone who has never expressed a view—orally or in writing—about whether Brown v. Board of Education, 373 U.S. 483 (1954) was correctly decided qualified to serve on the United States Supreme Court?
Is there a difference between respecting many different views of religion and saying that some cannot be a legitimate basis for taking government action, like jury decision-making that results in imprisonment?
The Bible has been invoked in the past to argue that women and African-Americans were inferior and the law should continue to treat them as such. Assuming such arguments were wrong, were they erroneous interpretations of the Bible? Were such arguments inappropriate reasons for making government decisions because they were religious?
Martin Luther King, Jr. made religious appeals as part of his argument for the civil rights of African-Americans. Were those an appropriate basis for members of Congress to vote on the Civil Rights Act or the Voting Rights Act?
Mary prays, and Matt recites the Lord’s Prayer. Are their prayers answered?
Imagine all the principal and secondary characters in this novel other than Matt as different facets of or possibilities for himself that compete in his mind—the story is told from his point of view. What is the significance of his killing in defense of another? What is the significance of doubling up as the instrument of death? The crowd at the LSU football game? His burgeoning relationship with Eric? The jury and its verdict? Imprisonment? The crowd at the convict rodeo? Gaining a chance at freedom by appealing to a higher court? An order granting, not acquittal, but a new trial? The two words describing Matt’s reaction?
Many novels use the personal as an allegory for the political, such as Albert Camus’ The Plague or George Orwell’s Animal Farm. Could the plot here, including its primary and secondary characters, be interpreted as an allegory for Matt’s personal experience of being closeted, outed and then coming out?
Afterword
I wrote the first draft Defense of an Other in 2007 and self-published the first edition under the pen name Paul Verity and with the title Doubling Up in 2011, all while struggling with a body and hormones that did not match my gender identity. I completed the book over a decade later after rewriting it, changing the title and changing the Matt’s lot in prison but without ever changing the outcome of his appeal. I now publish it again almost four years after I started presenting authentically full-time under my chosen name, Grace Lee Mead.
I wrote about a gay protagonist rather than a trans protagonist largely because for most of those eleven years I couldn’t fathom sympathy or acceptance from most straight readers for a trans protagonist. The central legal argument here—that the Equal Protection Clause should offer heightened protections to gay men because they are a discrete, insular minority subject to virulent discrimination—applies with at least as much force to all other LGBTQIA individuals, including lesbians, trans individuals, and those questioning their orientation or identity.
The novel opens in 2007 and unfolds in a world where Matt Durant’s trial and appeals are conducted without the benefit of the Supreme Court’s recent decisions establishing marriage equality in United States v. Windsor, 133 S. Ct. 2675 (2013) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015). The questions attributed to the Supreme Court Justices at oral argument in the novel are fictional but plausible before the marriage-equality decisions. For example, in dissenting from the Supreme Court decision striking down a state law making sodomy a crime, Justice Scalia warned the ruling would jeopardize the constitutionality of “[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, [and] bestiality.” Lawrence v. Texas, 539 U.S. 558, 590 (2003) (Scalia, J., dissenting).
Since I conceived of this novel in 2007, the issue of the use of sexual orientation during jury selection has arisen more frequently because, before 2013, Supreme Court precedent did not as obviously support such a challenge and fewer potential jurors were openly gay. As late as 2018, in reviewing a conviction from a 2004 murder trial, for example, a Massachusetts federal district court found the defense lawyer failed to preserve that objection based on the following excerpt from the transcript where the issue arose in a murder trial.
Defense Counsel: Your Honor, I’d like to put on the record that I’m beginning to see a pattern on the basis of the Commonwealth with the exclusion of a homosexual white male. So I want to put that on the record as well.
The Judge: Okay. You’ve put it on the record.
Defense Counsel: For the Court’s consideration. Thank you.
The Prosecutor: Just so I may be crystal clear, there’s absolutely no pattern. I don’t even know of any even homosexuals that have been before us. This particular gentleman was dressed, in my opinion, like a female and he has breasts and so forth. And, frankly, I was just looking at this from a common sense point of view. This guy has a lot of identification issues, and I don’t—”
The Judge: Well, first of all, you have a right to present a challenge. You can challenge a person for any reason, as long as it’s not illegal. It’s very simply put.
Smith v. MacEachern, 2018 WL 1316202, at *3 (D. Mass. 2018).
But in 2014, after Windsor but before Obergefell, the United States Court of Appeals for the Ninth Circuit relied on Windsor to rule it unconstitutional for a lawyer representing a manufacturer of HIV medication to strike a gay juror because of his sexual orientation in a civil case, reasoning that heightened scrutiny was required because the decision was based on the juror’s sexual orientation. SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 480 (9th Cir. 2014).
Other courts have also recognized the interrelationships between the constitutional issues of jury selection and same-sex marriage. In 2014, the United States Court of Appeals for the Seventh Circuit cited SmithKline favorably when striking down an Indiana statute banning same-sex marriage. Baskin v. Bogan, 766 F.3d 648, 671 (7th Cir. 2014). But in that same year, a federal trial court in Louisiana found a ban on same-sex marriage constitutional, rejecting the Ninth Circuit’s reasoning in SmithKline. Robicheaux v. Caldwell, 2 F. Supp. 3d 910, 918 & n. 8 (E.D. La. 2014).
In 2018, the issues raised by this novel remain pressing. Many disagree with those Supreme Court decisions. The topic of marriage equality remains emotionally laden for many voters and Justice Kennedy’s majority opinion in Obergefell focused more heavily on the institution of marriage than the equal-protection issues. To what would have been my utter astonishment in 2007, lower federal courts have also ruled that trans pe
ople are entitled to heighted protection under the Equal Protection Clause, though the United States Supreme Court has not yet addressed the issue.
Despite this legal progress toward equality, from 2013 to 2015, in the years in which the Supreme Court was considering the same-sex marriage issue, according to data voluntarily reported to the FBI’s Hate crime statistics project, there were over 3900 victims of hate crimes based on sexual orientation, including those who were murdered.
I hope this novel shows readers that they can and should understand the basic legal principles and arguments underlying these issues, no matter their profession or their conclusions. And these issues are deeply intertwined with other principles of equality that should be considered—by now—to be settled law.
At the very least, nominated judges, by that point in their careers, should be able to persuasively explain why Brown v. The Board of Education, 373 U.S. 483 (1954), requiring school desegregation over sixty years ago, was rightly decided. Robert Bork was rightly ‘borked’ because he couldn’t do that; decades later, nominees, particularly for the United States Court of Appeals and the Supreme Court, should be able to do so. Many do not, and I believe that those who rigidly interpret the Constitution according to its original, applied meaning, like Justice Scalia and Judge Bork, cannot do so persuasively. The public should judge political candidates’ and judicial nominees’ explanations on those constitutional issues, including equal protection issues—or their silence on them—in deciding which politicians to elect. Constitutional law is too important to leave to lawyers.
A Note on Louisiana and the Characters
My first acknowledgment is to the state and people of Louisiana. The novel is set there because—despite now having lived longer in other states—I still have a strong affinity for Louisiana. Every character in this novel, ranging from whomever you think a villain to whomever you think a hero, lives in Louisiana.
