by Linda Sillitoe
Coming of Age
[p.39]My initiation was simple and, frankly, a little brutal,” wrote Utah’s first full-time director, Shirley Pedler, in the program for the 1984 annual dinner. “I was given the keys to a disordered little office on Third South, vacated some weeks earlier by the previous director, Jim Joy.…”
She described how she “struggled to make some kind of sense and to bring some kind of order out of the confusion of papers, unopened mail, and ringing phones,” but admitted: “The executive director was scared, and more than a little in over her head.” She added, “Executive director: pretty fancy title for a young woman just graduating from college. Pretty fancy title for anybody running a little store-front operation on next to nothing.”
By the time ACLU members read this description, Pedler was in her tenth year of directorship and the Utah affiliate had come of age. It had acquired in Pedler an “inbred agitator,” nomenclature she stumbled on while explaining to the Salt Lake Tribune how her local upbringing had produced anything but the “outside agitator” critics liked to picture haunting the ACLU office.
Pedler brought a number of “firsts” to her leadership but also continued many traditions. She was the first woman at the helm, the youngest executive director, and, unlike most of her predecessors, was not an attorney. Like most of those before her, she was affiliated with the University of Utah.
[p.40]She had a degree in anthropology and would pursue a master’s degree in philosophy while serving as director. During her last year as an undergraduate, she participated in the university’s Year for Action program, working with the Coalition for Criminal Justice and sometimes with the ACLU. Thus when Joy turned his eyes toward Colorado, he recommended that Pedler apply for his job.
Despite the fact that she was full-time, her gross salary was under $600 per month. Members passed the hat at one board meeting to meet her semimonthly wage. This was Pedler’s first “real job,” she said, and “had the affiliate been better developed in those days, I wouldn’t have been qualified.”
Despite her youth, Pedler had possessed strong feelings about civil liberties since childhood. “I remember sitting on a bus and feeling outrage hearing some children talking,” she told a reporter in 1978. “They were making jokes about the fact that a black family had moved into the neighborhood. Their parents said it would lower the property values.” She recalled: “I was always angry, too, in school because there were all those records on me, without my consent, that were open to lots of people. I think I was offended young.”
That “level of outrage,” as Pedler called it, combined with her hometown sense of how Utah worked. During her tenure of a dozen years, the Utah affiliate would achieve some significant landmarks, including important church/state cases. Less successfully, but in the glare of the national attention, they would join national headquarters and other civil libertarians in resisting the first execution in more than a decade, as the nation’s death penalty caught its second wind in Utah. Young, female, articulate, and outraged, Pedler embarked on what would become an eventful ACLU career.
When board president Michael Rudick updated the Salt Lake Tribune in August 1975 on the status of the Utah affiliate, he mentioned that the membership had almost doubled in the past two years, now reaching 750. Rudick commented on the ACLU’s recent support of draft resisters and war protestors. “There are a great many public stereotypes of the ACLU,” he told the newspaper. “One example is that it’s a left-wing organization; that we are entirely devoted to keeping radicals out of jail. People who say that,” he continued, “forget that we had, for a number [p.41]of years, also defended the rights of southern segregationist governors, such as George Wallace or Ross Barnett, to a fair trial while at the same time disagreeing with their views.”
In Utah, Rudick explained, conflicts differed from the norm. “Utah’s history, given the role of the LDS church in founding the state and in maintaining the state for so many decades, has eventuated a serious church/state problem, which is always a delicate problem.…”
Other issues surfaced, too, the article added. Currently the affiliate was involved in court cases involving unemployment benefits for pregnant women; protecting the rights of juveniles from expulsion from high school without due process or parental notification; disciplinary practices at the State Industrial School; and nondisciplinary transfers and polygraph tests without due process for certain prison inmates.
The affiliate was to become increasingly noticeable as well as busy. “When I started the job, the ACLU had a half-time director, but the organization had not been visible,” Pedler said in an interview near the end of her tenure. “When they hired me I could literally feel the shock wave go through the community because the state was so accustomed to being able to do the things that we litigate against.”
Like many in her generation, Pedler had been influenced by the social movements of the 1960s and early 1970s. As director, she adopted a confrontive style modeled after the ACLU staffers she met nationwide, who were the most aggressive people she knew. “I was doing what I thought I was supposed to do,” she said later. “I felt that was our role.”
In retrospect, she wonders whether a conciliatory approach would have been more useful at times. This hindsight followed her tenure with the ACLU affiliate in Louisiana where “the pretention to niceness is more pronounced than in Utah and the meanness underneath is worse.”
Pedler’s administration began typically enough. She moved the office from Third South to Main Street’s venerable Judge Building. She held an organizing meeting in Moab in southeastern Utah. “They have many immediately apparent problems there,” she wrote in a newsletter. “The local sheriff collects returned checks for the local merchants. The County jail prisoners are kept without sufficient food.” She added, “They routinely harass ‘hippies’ with sanitation and vagrancy laws that are almost surely unconstitutional. The school expels students without a [p.42]proper hearing” and had fired one teacher who was too outspoken.
Another chapter was being considered in Dugway, as well, on the western side of the state. While the Logan and Ogden chapters maintained a steady presence, most tended to flare and then dissipate when individuals ran short of time and energy or when a particular issue lost momentum.
In the capital city censorship issues continued to erupt. The city toughened its stance, and in the latter half of 1975 a theater operator was arrested, tried, and convicted on obscenity charges for showing the film Deep Throat.
City court judge Paul Grant handed Lee Harper, proprietor of the Palace Theatre on State Street and Broadway, a maximum sentence of six months in jail, a fine of $299, and an additional $249 in court costs. He suspended five and one-half months of the jail sentence on six months’ probation, requiring public restitution to charity in the amount of $5,000, and released Harper on $1,000 bond. Harper vowed to appeal, adding, “It’s a shame the city prosecutor’s office is being run by [Citizens for Decency Committee leader] Maurine Brimhall.…”
Decades later a news clipping surfaced in the ACLU files, flagged by a typed note at the top that read: “Shirley—the ACLU should get involved on the [Harper] appeal and file an amicus brief saying the ordinance is unclear. brian.” The lower case “Brian” was Brian Barnard, who became a cooperating attorney for the affiliate. Pedler announced that the ACLU would support Harper’s appeal. The Tribune quoted Pedler, “The ordinances on obscenity are so unclear that no one knows what is against the law. An obscenity ordinance must make perfectly clear what is obscene.…”
Barnard’s brief contended that the vagueness itself stifled free speech and due process. The judge failed even to define “obscenity performance” and “obscenities in accordance with United States Supreme Court decisions.” Barnard argued that since the same movie was taken to trial in Magna, in southwest Salt Lake County, and found not to be obscene, it did not violate community standards. What was essentially a second trial in Salt Lake City, he said, constituted double jeopardy. (Despite Barnard’s defense of the film, he quietly declined an opportunity to view it with prosecutors.)
[p.43]Meanwhile, the Deseret News hailed the judicial decision with an editorial headlined, “Bravo, Judge Grant.” It praised: “A penalty that stiff ought to cause other movie house owners to think twice before trying to turn a fast buck by pandering to mankind’s baser instincts.” The editorial continued: “Moreover, while smut’s damage can never be entirely undone, a fine that must be donated to charity can help repay some of the harm.”
Late in 1975 assistant city prosecutor Ted Cannon was given free rein to increase legal action against theaters and bookstores. Cannon’s campaign would help get him elected to the office of Salt Lake County Attorney. But despite the effort to suppress erotica, the ACLU’s effort saw results. Roy City paid more than $8,000 to the ACLU after losing its attempt to censor cable television, and North Ogden was forced to pay $1,400 in a similar case.
Barnard and the ACLU teamed up on another case. By October the Utah ACLU was threatening court action regarding an excessive force suit brought against two police officers. The suit was brought by New Yorker Lynnell Parmer who was arrested in April 1974. The officers were found guilty in U.S. district court of using unlawful force and were fined $4,000 each in general damages and $2,000 in punitive damages. Salt Lake City backed the officers by saying it would pay the punitive damages, and city insurance would cover the liability damages.
The Deseret News reported the ACLU’s criticism of the city’s plan on October 2, 1975. “Cities can spend money only for public purposes under the Utah Constitution,” a spokesman said. “The payment of punitive damages for individuals is not a public purpose.…”
The article continued: “The ACLU announcement came more than a week after Brian M. Barnard charged that the city’s paying punitive damages for the policemen would place them and other officers above the law.…” Quoting the ACLU: “The City Commission should support the police to the fullest extent, but when officers are in the wrong, and have exceeded their authority, those officers should be held responsible.”
While such cases were relatively small, they were harbingers. Barnard’s impact on the ACLU would be significant but immeasurable, since he most often gave behind-the-scenes advice and filed separate [p.44]but complementary lawsuits. After twenty years of association, he joked, “I don’t know whether I should claim the brickbats aimed at the ACLU but meant for me, or charge them a fee for building their practice.”
Barnard had moved to Utah from southern California in 1971 and began working at what became Utah Legal Services, a non-profit organization representing those who could not afford private attorneys. His tolerance for boards and committees was as low as his enthusiasm for bucking the system was high. During law school he worked evenings in a university program to orient high-risk high school students. When students voted him the most helpful counselor, as Barnard told it, one-third of the daytime staff responded with, “Who is he?”
Barnard’s legal emphasis became financially feasible in 1976 with the passage of the Civil Rights Act, which made attorney fees collectible. From then on he found he could afford to do what he did best—impress the importance of individual rights on government.
“One of the fun things about civil rights litigation is teaching the other side,” he would say years later. “My fee is their tuition payment.” The opposition, whether city, county, or state government, seldom viewed its education so rosily. But Barnard and the Utah affiliate would remain natural allies.
Roughly between 100 and 200 complaints per month entered the affiliate office during Pedler’s term. Her first high profile case would be called the “Terrace Ballroom incident.” Salt Lake County’s Hispanic population enjoyed gathering for parties and celebrations, sometimes in homes or businesses, but often in rented halls. In June 1976 a large group held a party in the city’s downtown Terrace Ballroom. As the evening progressed, and revelers became high-spirited, the party was broken up by Salt Lake City police who charged in with police dogs. Several people were bitten, others arrested. Within hours the telephone of ACLU cooperating attorney Judith Wolbach rang with complaints of racial prejudice and excessive force.
As riots, racial issues, and police actions had filled television screens during the last decade, some downtown businesses had removed streetside windows to riot-proof their property. The police were on the watch for disruptions. The Terrace Ballroom party seemed such an outbreak on a small but alarming scale.
[p.45]In June Michael Rudick began a letter to affiliate members: “By now you’re surely aware of the ACLU’s engagement in the legal aftermath of the Terrace Ballroom incident in Salt Lake City earlier this month,” he wrote. ‘‘The more we learn, the more convinced we are of the substantial civil liberties implications.”
Rudick continued: “Ordinarily, the ACLU of Utah does not undertake police abuse litigation…[but we] argue for an accessible civilian review board to deal with such cases.” However, he wrote, the ‘‘Terrace affair is an exception. The ACLU has been widely criticized for what is considered its haste in announcing its position and undertaking legal defense of the victims.” But this was based on “extensive interviews with witnesses and with persons who were arrested and who were injured by beatings and dog bites.” The letter requested financial support for the five volunteer attorneys preparing legal action against the police department and the city.
The Terrace incident dominated discussion at the 1976 annual dinner, which featured assistant Salt Lake County attorney Gerald Kinghorn. He called for an independent investigative agency to handle citizen complaints against government and police officers. He said, “Unless such an agency is created, brutality and official misconduct will likely be repeated.”
The flare of publicity around the Terrace incident ended in a legal fizzle. Several of the volunteer attorneys were transferred to other work situations, leaving Judith Wolbach overwhelmed. With the affiliate unable to financially muscle the effort, cases were quietly resolved by private attorneys. In retrospect, however, Wolbach believed that the ACLU’s stance and resulting publicity influenced the police’s future reluctance to use dogs in crowd control and heightened sensitivity to ethnic issues.
Although the Utah ACLU was gaining a higher profile, the need for follow-through volunteers illustrated a larger problem. Pedler’s annual budget requests to National totaled around $6,000. For the first several years she had no support staff. Later CETA (Comprehensive Employment and Training Act) workers assisted in the office, and finally an administrative assistant, Steve Francis, was hired on a part-time basis.
“We were seriously broke a lot of the time,” Pedler said. “I was not [p.46]a skilled or trained fund raiser and National was not dealing effectively with that concept either. The board didn’t recognize a responsibility for fund raising. It didn’t enter our heads.”
In the latter half of the 1970s National encountered a financial crisis after it protected the rights of Nazis to march in Skokie, Illinois, the home of many Holocaust survivors and other Jewish citizens. The backlash from within and without the ACLU shook the organization.
According to Samuel Walker: “Skokie was a struggle in keeping with the highest traditions of the ACLU. As its president, Norman Dorsen, had explained, the ‘ACLU had preserved its honor by keeping faith with our principles.’” Walker continued, “In the face of ferocious public hostility, it had defended the First Amendment rights of the unpopular. The victory for the First Amendment had extracted an enormous price.…”
The loss of memberships and contributions following the Skokie controversy plunged the ACLU into a half-million-dollar debt by 1978. Ultimately, Walker concluded, “Skokie was a blessing in disguise, exposing a host of organizational problems and forcing the ACLU to overhaul its operations.”
During those years of organizational stress, the Utah affiliate “limped along,” in Pedler’s words, running more on gritty idealism than on cash. In late August the Utah ACLU declared pornography ordinances passed in Woods Cross north of Salt Lake City (Davis County) and in Utah County’s Orem to the south to be unconstitutional. Pedler and Barnard issued a press release quoting letters they had sent to the respective city councils regarding “unconstitutional and otherwise illegal and unenforceable” ordinances. They advised the cities they would “defend anyone convicted under the ordinance and…challenge its constitutionality in a court of law.”
The Woods Cross law made illegal “the use of abusive, menacing, insulting, slanderous or profane language.” The clause was so broad that “almost any expression or opinion could be a possible basis for arrest, and it gives authorities an incredible amount of discretion in deciding who may say what.”
Other local skirmishes continued, but these were soon upstaged by [p.47]events drawing the attention of the nation. The State of Utah was poised to execute convicted murderer Gary Gilmore. By doing so, this would reinstitute the death penalty which had been ruled by the U.S. Supreme Court to be unconstitutional as then practiced. To prevent the execution, the national ACLU sent attorneys and support to Utah. The national and local media, book authors, film makers, and a storm of controversy also arrived independently.
Gilmore was a sociopathic client of virtually every social program devised, from foster homes to juvenile detention to prison. While on parole, he killed two Utah County men in separate robberies. Then he refused to appeal his death sentence, though his attorneys did for him.
The case mobilized civil libertarians and death penalty opponents nationwide. For the ACLU, Gilmore’s attitude, his crimes, and his guilt were all beside the point. The organization considered the death penalty a barbarous example of cruel and unusual punishment prohibited by the Bill of Rights.
In mid-November the battle intensified. With the execution date of December 6 quickly approaching, the Utah Supreme Court, in a four-to-one decision, voided the stay of execution. New appeals enjoined one jurisdiction after another to halt the firing squad.
Shirley Pedler watched as the Utah State Board of Pardons reviewed the case, then voted two to one not to commute Gilmore’s sentence. She called the board’s decision “very unfortunate” and criticized the hearing as contradictory and subjective. She praised the dissenting vote cast by Harriet Marcus. ACLU attorney Jinks Dabney was quoted by the Tribune on December 3 that, when the United States Supreme Court received the case on appeal, “they’re going to look at it and say, ‘My God, this is a circus.’”
With less than seventy-two hours to go, the U.S. Supreme Court did, in fact, order the action delayed until appeals could be heard. Gilmore was “not very happy.” He and his attorney released the following statement to the Tribune: “I wish my mother, the niggers [the NAACP, involved due to the number of African Americans sentenced to death] and sons of bitches would butt out of my life. It’s none of their business. They are a bunch of cowards.” He continued: “If I have a right to a speedy trial, why don’t I have a right to a speedy execution? I am [p.48]being held with a sentence of death not a sentence to do time. My sentence expires December 6.”
Despite Gilmore’s frustration, appeals traveled to a three-judge federal court, to the Fourth District Court, and, at Gilmore’s mother’s request, to the U.S. Supreme Court. Chief Justice Warren Burger denied the appeals, commenting that the “case may be unique in the annals of the court” since Gilmore “not only was not asking for a stay of execution, but has asked for execution.” On December 30 The Salt Lake Tribune published an open letter from Gilmore blasting the organizations and individuals trying to preserve his life, the “ACLU, legal defense funds, sundry assorted lawyers for cowardly condemned criminals.” Gilmore particularly asked Shirley Pedler to “layoff”: “I wouldn’t be so presumptuous as to presume I could impose any unwanted thing on your life. Get out of my life, Shirley.”
Pedler wrote to Gilmore to explain why she was involved. Similarly the national ACLU wrote an open letter to Gilmore, carried in an Associated Press report: “Sorry, but we won’t let you turn us into killers—of you or anybody else.” They continued: “Someone sentenced to death, like you, is to be executed ‘in the name of the people,’ and we believe that the killing of human beings is an act so appalling that we would not have the state do that in our name.”
Michael Rudick told the Tribune he felt certain that an appellate review would declare the state’s capital punishment law unconstitutional. But the ACLU decided not to file its own lawsuit in preference to an amicus curiae brief to accompany any other lawsuit.
An ACLU flyer called for a mass meeting on Saturday, January 15, in the auditorium of the State Capitol Office Building. The Very Reverend Robert Anderson, dean of St. Mark’s Episcopal Cathedral, state senator Frances Farley, and Lalo Delgado, Chicano educator and poet, were listed as speakers. The flyer said, “Join us in protest against capital punishment and the scheduled execution of Gary Gilmore. If our protests are unsuccessful the coalition will hold a silent pre-dawn vigil at the state prison on the date of the execution.”
Judicial gymnastics continued throughout Gilmore’s last night. At 1:00 a.m. on January 17, U.S. district judge Willis Ritter halted the execution. Before dawn, however, Ritter was overruled by the U.S. [p.49]Appeals Court in Denver. Gilmore was executed by firing squad before first light.
Gilmore absorbed Utah’s young ACLU executive director completely. She recalled later, “I had no real preparation for it, either for the affiliate or myself to be at the center of a major national controversy. It was absolutely consuming from the time we became involved in November until he was executed January 17,” a date that remained fresh in her mind more than a decade later. “It was my life for that period of time,” Pedler continued. “I was young, new, and idealistic, and I thought we were going to win, that we could prevent the execution. I was personally devastated when we didn’t.”
Gilmore’s execution not only altered the history of civil liberties in the United States, it became a landmark for establishing media rules and state laws governing literary rights and profits. Following a moneyed battle on several fronts, eastern author Norman Mailer landed the story, writing The Executioner’s Song. In it he profiled Pedler and the Utah affiliate:
Five or six Salt Lake attorneys volunteered their time on a regular basis, and as many as twenty might help once a year. It was small stuff and, right now, beleaguered. In Utah, belonging to the ACLU was like being a Bolshevik.
Once the ACLU got into the Gilmore case, Shirley Pedler began to receive a lot of hate mail and crank calls…. She knew it would continue until Gilmore was dead. She was living by herself, and sometimes after a long day, she would dread going home to hear the phone ringing.… “I hope you get shot with Gilmore,” …[a] caller would say. Sometimes the men were obscene. One remarked that since she was good looking and single, he was ready to do this and that to her.
They usually hung up quickly. By now, these days, she was tending to flare up. Didn’t hesitate to tell her callers off. Her nerves had never been well insulated, but with the loss of sleep and the loss of weight, she had nightmares about … Gilmore. A man would kick a platform out from under him. As he hung in the air, they would release gas pellets. Some of the dreams were bloody.
Raised to be active in the church, she was no longer a practicing Mormon. All the same, these callers were like people she had grown [p.50]up with. She didn’t feel betrayed so much as unable to believe what was going on.…It had been a travesty, and in the middle was Gilmore, a terribly pale and quite attractive young man, Shirley Pedler thought. His [hunger strike] had made him look ghastly, but unforgettable. He was so pale.
Afterward, she became personally self-conscious about the fact that this man’s life, due to the maneuvering going on, was in very uncertain circumstances. He did not know his fate from day to day, and yet she was part of those maneuvering.
So she wrote a letter to Gilmore. She told him that she regretted the discomfort that the ACLU was causing him and the terrible Uncertainty.…She thought that if she could speak to [him], she would say that she was not personally out of sympathy with his wish to commit suicide…but his execution would touch off others, for it would demystify the taking of life by the state. The real horror was people lining up to blow somebody away with a lack of passion, a methodical, calculated turning of the machinery of the State against the individual.
“I never resigned myself to Gilmore’s death,” Pedler would tell the Tribune. “When the last appeal was denied, my gut level feeling was that he would die. It had not been there before.”
The lawyers, the media, and the civil liberties groups quickly vanished after the execution. For a time Pedler went through the motions of her job but felt shellshocked. Although she had been under fire figuratively, the intensity had dominated her life and the backlash was a further shock.
“Not only was everything anti-climatic,” she recalled, “but I felt separated out from the rest of the universe. My experience had been so acute, so audacious, and in some ways, painful.” Nevertheless, she learned that following such an experience, “you learn to regroup and carry on.”
Two years later Pedler criticized Florida’s governor for refusing to stay the execution of convicted murderer John Spenkelink. Gilmore’s execution set a precedent, just as she had feared.
“Of all the ACLU positions,” Samuel Walker wrote of the director of the capital punishment project, “Henry Schwarzschild’ s most closely [p.51]resembled the lonely role of the ACLU leaders during the 1920s.” He “faced overwhelmingly hostile public opinion and found little support in the courts.…”
Schwarzchild and the ACLU nationwide despaired as the number of death-row inmates increased steadily, reaching 1,900 by early 1988. After Gilmore’s death broke the de facto moratorium in 1977, the “pace of executions steadily increased: two in 1979, five in 1983, and more than 100 in 1988.” Walker added, “No other area of the ACLU’s programs seemed to offer so little hope.”
Regrouping and carrying on would bring the Utah affiliate a variety of issues and cases as the 1970s became the 1980s. It would protest the fingerprinting of juveniles, involuntary commitment of mental health patients, abuses in juvenile programs, and the state’s exclusion of third party candidates from the ballot. In 1979 cooperating attorneys Brian Barnard and Kathryn Collard filed lawsuits against the Salt Lake County Jail based on overcrowded cells and lack of a mental health facility. The lawsuits would take years and a new county attorney to resolve, but ultimately a mental health facility would be provided and limits on the maximum number of jail inmates would be negotiated.
Soon after Gilmore’s execution, Pedler had another high profile battle on her hands, although this one drew attention mainly within Utah. For years the LDS church had provided religious instruction for high school and college students in seminaries and institutes that the church located near the campuses. Not only were students excused from high school classes to attend seminary during the school day, some classes counted toward graduation.
This was not unique. Other communities combined religious and secular instruction in a variety of formats. A Champaign, Illinois, program allowed students to take religion classes taught by privately paid clergy but held in the school building, but these had been ruled unconstitutional by the U.S. Supreme Court. However, the court’s attitude had been mixed. In 1952 the court refused to hear an ACLU challenge to Bible reading during class time and upheld a released-time program in New York which allowed students to attend religion classes off school property.
In May 1977 cooperating attorneys Collard and Steven Cook filed [p.52]a lawsuit in U.S. district court against the Logan, Utah, School Board and district officials for granting graduation credit for seminary courses in Old and New Testament. The plaintiffs, Ronald Lanner, Harriet Lanner, and Jack Sherting, all lived in Logan. The ACLU attorneys claimed that the courses were primarily religious instruction, and therefore could not be granted graduation credit. The LDS church maintained that the courses were not particularly Mormon but simply taught students Judeo-Christian tradition.
Rabbi Abner Bergman, leader of Congregation Kol Ami in Salt Lake City, testified for the plaintiffs regarding “racial overtones” in the instructional material’s portrayal of a Jewish man named Kahn who converted to Mormonism and survived the Holocaust, apparently due to his conversion. The Salt Lake Tribune quoted Bergman: “I don’t want my children to read this. Am I to believe that if we had a Holocaust here we would be spared by converting to Mormonism?”
The defense attorney objected to use of the word “Holocaust” due to a television series by that name. Bergman replied, “The Holocaust I was referring to is not a television show, but a reality, something that occurred in history. A lot of members of my family, I wish, could view the television show, but unfortunately they are now glue.” Bergman objected to LDS depictions of marriage, sabbath observance, and alcohol.
Cook remembered the release-time case as significant and challenging. Both he and Collard received death threats. “We took a lot of heat,” he said. “We were challenging the very foundations the state stood on, that is the LDS church’s right to educate children as part of the school system.”
Ultimately release-time religious instruction was upheld provided that it was an option for all churches. However, the days when students received graduation credit for LDS seminary classes were gone. But the State Board of Education and school districts scurried to adjust graduation requirements and scheduling so that students could attend LDS seminary and still earn enough credits to graduate.
The Lanner case represented a significant victory for the ACLU, since it had challenged the state power structure and dominant church and won. Pedler told the Tribune, “For years we had calls questioning [p.53]the LDS seminaries granting credit to students. That was the origin for the suit and an example of a problem that affects many.”
Regional director Dorothy Davidson commented later on attorney Collard’s involvement: “Kathy gave the ACLU in Utah a big boost. She won court-awarded fees, which she turned over to the ACLU, and she raised the profile of the ACLU as a litigator.” In 1984 board president Ross Anderson praised Collard: “The financial condition of the affiliate is greatly improved, due primarily to the award of substantial fees…obtained by Kathryn Collard in the Lanner case and in the Provo Canyon Boys School case…,” adding, “the Utah ACLU will always be deeply indebted.”
By the time Shirley Pedler reached her third year as executive director, she felt like a veteran. The Tribune portrayed her as “bound to her cluttered desk, unable to be out and about.” In times of crisis such as before the Gilmore execution, “the office becomes her home,” the Tribune said.
Church/state issues continued to generate tension. Pedler heard from various parts of the state that prayer in the public schools was common: prayer in classrooms, prayer before assemblies or school plays, and prayer before football games or other athletic events. Invariably non-LDS students felt excluded or insulted.
Despite the complaints, no lawsuit developed. When the callers realized “we can’t wave a magic wand and make the problem go away, but had to represent them as plaintiffs and calculate damages, usually they were not willing to go forward,” Pedler recalled.
Nevertheless, Pedler sent a letter to school principals and superintendents objecting to prayers as part of the school day and reminding the officials that it violated federal law. One Utah County principal, Brent Milne, ordered the practice stopped. He told reporters the school had no written policy regarding prayer but understood that if the prayers in classrooms were challenged, they would then cease.
Asked about her letter, Pedler told reporters that she was attempting to save school districts trouble and taxpayers’ money. She added that school prayer was illegal and that the ACLU was prepared to sue if necessary. Eventually school prayer would become a bitter battle, but not yet.
[p.54]Pedler’s enthusiasm for her work was evident in her interviews. “That’s why it’s so nice to have this job,” she told the Tribune. “I’m earning my living doing something of personal concern.” Asked to trace her bent toward civil liberties, Pedler said: “I don’t see the issues as that hard to grasp. It’s a matter of treating a person unjustly on the basis of race, sex, sexual preference, age, etc. We don’t want to force our philosophies on anyone. We just work to change the system.”
She added: “It seems antithetical to the American way that anyone bucking popular prejudice is labeled a threat to democracy. That’s why to be discredited as a radical or communist is so devastating.”
The affiliate would successfully settle a lawsuit based on age discrimination, brought against the University of Utah after a fifty-one-year-old woman was refused admittance to a doctoral program. Defense of a woman’s right to promotion took a different turn.
On June 27, 1983, the affiliate filed a class action lawsuit in U.S. district court against the Jordan School District, in the southwest Salt Lake Valley. The majority of the administrators in that district, as in most others, were male and usually Mormon. Marianne Van Avery v. Jordan School District alleged violation of Title VII of the Civil Rights Act by promoting less qualified men.
Pedler issued a press statement outlining the case. Van Avery, she said, spent five years as an elementary school teacher interested in promotion to principal. Accordingly, she completed an administrative intern program, served as an intern-administrator under several principals, and obtained an education specialist degree, an elementary administrative certificate, and received consistently high ratings. Nevertheless, the district appointed and promoted “an overwhelming predominance of males notwithstanding the large number of qualified female applicants.…”
Worse, after hearing that Van Avery had filed charges with the Equal Employment Opportunity Commission, one school administrator “told her that if she pursued her charges, she was finished in the Jordan School District,” wrote Pedler. “Such threatening behavior constitutes unlawful retaliation.”
The lawsuit requested retroactive promotion, back pay, $100,000 in compensatory damages, and $200,000 in exemplary damages. It further [p.55]asked the court to enjoin the Jordan School District to correct its discrimination. However, U.S. District Judge J. Thomas Greene rejected the teacher’s claims, writing, “There was no direct evidence of any discrimination because of sex.” Pedler disagreed, telling the Tribune that the “Equal Employment Opportunity Commission found that there was not just discrimination against her, but that there was a [broader] pattern of discrimination.…”
Religious issues wore several guises and filled many days in the Judge Building office. In 1983 Pedler showed Wall Street Journal reporter Ken Wells material from a public school in rural Utah. The topic was ancient Indian rock carvings, but Pedler pointed out that the accompanying explanations were “all tied to the Book of Mormon. This stuff is being passed on as authentic history.”
Wells noted that the ACLU generally sent letters rather than filed lawsuits, since the incidents were too prevalent for the affiliate to litigate. A recent newspaper survey, he wrote, “showed that prayer was practiced in about a third of forty-five school districts polled. And school prayer in Utah means Mormon prayer.…”
Pedler told the journalist that in this “crisis area,” the ACLU wrestled more crucial issues. “The right to abortion and even contraception is constantly under attack; the specter of sex-discrimination is ever-present; Utah’s small homosexual community is often the object of abuse.…” Pedler admitted that these were not overtly church/state but said they stemmed from the same source.
“New Right crusaders of all stripes are at work here, often cloaking themselves without sanction in the Mormon banner…,” Wells wrote in his article. “…the Mormon insistence on conformity, its absolutist, aggressive moral posture is the medium in which the New Right ferments.”
Richard Lindsay, spokesman for the LDS Special Affairs Committee, offered Wells the positive side of the church’s influence, stressing that Utah had less violent crime, less welfarism, fewer deaths caused by drunken drivers, and lower cancer and heart disease rates than most states. He did not claim full credit for this, Lindsay told the Journal, “but we like to think what we do has a positive influence on Utah’s quality of life.”
[p.56]One church/state case under Pedler’s direction challenged the LDS church directly and eventually reached the U.S. Supreme Court. Pedler gained the help of two attorneys, fresh from a few years’ practice in New York, who would impact the organization significantly.
In the spring of 1983 David Watkiss, Jr., and Elizabeth (Terry) Dunning filed Amos v. LDS Church, challenging the requirement of employees of church-owned businesses to hold a temple recommend—a certificate allowing entrance into LDS temple rites. Recommends were granted only to those who tithed, attended all church meetings, abstained from alcohol, tobacco, tea, and coffee, and professed loyalty to church leaders. Complaints came from people in several businesses who had lost their jobs.
From the outset Dunning counted herself lucky to be chewing on such a meaty case so early in her career. Previously she had pursued a New York City sex discrimination case, becoming familiar with Title VII which protected race, sex, religion, and national origin. When the ACLU reported protests from workers in non-profit, church-owned industries, Dunning offered to research the matter. Already a Christian television station in the East had lost on Title VII. But they were a for-profit operation, and the Utah case involved non-profit entities. The complaints carne from a truck driver for the Mormon goodwill shop, Deseret Industries; a janitor at the Deseret Gym; and six Beehive Mills employees who sewed underclothing worn by devout Mormons.
Church attorneys argued that the employees were engaged in religious activities and thus the businesses were protected by Title VII’s religious exemption. The church moved to have the lawsuit dismissed, but federal judge David K. Winder refused. Dunning and Watkiss won a year’s worth of discovery. They then moved for summary judgment. Winder dismissed the claims of the former Deseret Industries truck driver, ruling that an intimate relationship existed between the activities of Deseret Industries and the religious tenets of the church. But in January 1984 Winder ordered the Corporation of the Presiding Bishop to rehire the Deseret Gym janitor with back pay and benefits. He found “nothing in the running of Deseret [Gym] that suggests that it was intended to spread or teach the religious beliefs and doctrine and practices of sacred ritual of the Mormon Church.…”
[p.57]The Beehive Clothing Mills employees prevailed, as well. Their attorneys gleaned “some nice language,” Dunning recalled, from U.S. district judge Bruce Jenkins. Dunning and Watkiss were now regarded by their friends in the East as “famous First Amendment lawyers” who had claimed a major triumph for the ACLU.
Dunning reminisced about the seemingly improbable outcome: “We were told, ‘You will never get discovery against the LDS church. You’ll be thrown out of court.’ But,” she continued, “we did get discovery, and we won in Utah. That showed that people’s rights can be protected even against very powerful institutions.”
Immediately, however, the LDS church, joined by the U.S. Justice Department, appealed to the Supreme Court under a procedure that bypassed the Tenth Circuit Court of Appeals. At that point, Dunning recalled, there was “a little shoving” in New York among national ACLU attorneys who wanted the case. “I’m a New Yorker, born and bred,” Dunning said, “but I lived in Utah. I reminded them that they didn’t have a client they were representing.”
Ultimately, in March 1986, Watkiss argued the case before the Supreme Court. His performance was favorably noted in The American Lawyer. By that time the law firm of Watkiss and Campbell had contributed well over a quarter million dollars in billable hours put in by the volunteer attorneys.
“The thing that gives the ACLU tremendous power and value,” Dunning said, “is the expression of real people’s intense concern about their constitutional rights.” Even as they awaited the decision of the Supreme Court, the ACLU lawyers felt that the atmosphere in Utah was changing. “In 1983 [before the Amos case], people were willing to brush off the ACLU and its lawsuits. That has forever changed,” Dunning said later. “People get mad at the ACLU, but it’s not written off as an insignificant voice.”
Regional director Dorothy Davidson agreed. “The issues were always there.” The challenge lay in strengthening the affiliate to the point of effective advocacy. She added, “Some said that the Bill of Rights didn’t apply in Utah.”
As the national ACLU restructured its organization, it decided to help professionalize the affiliates. Davidson visited Utah and analyzed [p.58]its impact and needs. In some respects the Utah ACLU was still invisible, she found. She checked with the court reporter at a local newspaper to see if he called the ACLU for comment. No, he didn’t. She asked the police chief if he knew the name of the executive Director—no, he didn’t.
Yet Davidson also noticed that, given a forum, Pedler’s comments were picked up on the evening news. “She was articulate in outlining the principles of the ACLU.” With a board member, Davidson drew up recommendations. If achieved, the affiliate would get a development grant from National that would allow significant growth.
Pedler outlined the affiliate’s challenge in the 1984 awards dinner program. “This year new financial policies promulgated at the national level went into effect,” she explained. ‘‘The purpose of these policies is to assist ‘small’ affiliates, such as ours, to self-sufficiency. The problem is, there’s no escape-clause; we either achieve self-sufficiency or we go under.”
The affiliate needed to raise $20,000 in membership income, event revenue, and foundation donations to qualify for the first of four annual grants beginning at $12,500 and reduced by 25 percent each year. “If we fail to raise as much as we did this year for two consecutive years,” she added, “we lose not only our grant, but our share of membership income, which has been averaging around $11,000 per year.”
If the affiliate succeeded, Pedler explained, it would then move into a second phase and have to raise at least $40,000 annually. “At the end of phase two we are strictly on our own,” she wrote. “We will have the kind of organization the local population is willing to support.”
In his banquet address, board president Ross Anderson celebrated the affiliate’s victories. “We have successfully challenged state laws requiring parental notification and consent for minors seeking contraceptive services and counseling,” he said. In addition, “We have recently obtained reinstatement of an employee of the University of Utah Medical Center who was fired because he expressed his intention to appear on a televised interview about problems faced by gay members of his religion.” Anderson also noted, “We have successfully challenged ordinances which sought to censor the programs we can view over cable television, and we are currently challenging a similar statute enacted by [p.59]the Utah Legislature.”
As Anderson’s comments indicated, censorship had resurfaced. Like the employment issues just litigated, the cable television dispute carried strong overtones of constitutionally-proscribed separation between church and state. Who should decide morality, and to what lengths could or should the government go to enforce which films could be viewed by its citizens?
The clash began with the 1983 Cable Television Programming Decency Act which prohibited the distribution of “indecent material” over cable television. Governor Scott M. Matheson vetoed the bill, stating it was probably unconstitutional, but the legislature overrode his veto and the cable television bill became law. Utah broadened the definition of obscenity to include any depiction or description of a sexual act, or the exposure of breasts, buttocks, or genitals “which the average person applying contemporary community standards for cable television” would find offensive.
Cooperating ACLU attorneys Patricia Metzger and Steven H. Blum filed a class action lawsuit against Attorney General David L. Wilkinson. Elsewhere in the nation similar cases had been filed, and the Utah attorneys monitored their progress. In 1984 the U.S. Supreme Court ruled on Capital Cities Cable, Inc. v. Crisp after accepting amicus briefs from the Federal Communications Commission, Morality in the Media, Inc., and Citizens for Positive Community Values. On August 10, 1984, the court heard oral arguments.
In the meantime Congress passed the Cable Community Policy Act of 1984, which became the first regulatory act governing cable television nationwide and achieved the recognition of the high court. The act maintained that regulating content was the responsibility of the Federal Communications Commission and that the states could not infringe upon that power.
After considering the actions of both Congress and the Supreme Court, U.S. district senior judge Aldon J. Anderson wrote of the Utah lawsuit: “Following Supreme Court precedent, today’ s ruling delineates an area in which private individuals, particularly parents, must assume an important responsibility for maintaining a decent society.” Individual responsibility seemed the best way, Anderson wrote, of protecting First [p.60]and Fourteenth Amendment freedoms. He ordered: “Based on the foregoing analysis, the court concludes that the Utah Cable Television Programming Decency Act is unconstitutionally overbroad and vague, and void on its face.”
The issue raised hackles within the community in a way that would not be repeated until the abortion issue surfaced in the 1990s. “The cable TV bill was a loser and everyone knew it,” Terry Dunning commented, yet it had evolved into a church/state issue “with the church trying to keep wickedness out. It was a frivolous issue, but the institution insisted that they be hit over the head with a Tenth Circuit Court decision.”
In 1985 the Tribune reported another kind of controversy on the front page of the local section: “ACLU, City May Lock Horns Over Loitering Law.” The article began: “A proposed Salt Lake City loitering law may be a ‘we-don’t-like-your-face ordinance’ to discriminate against punk rockers and break dancers downtown, says the local ACLU office.”
Shirley Pedler objected to the law under consideration by the Salt Lake City Council because it “doesn’t define well enough what is prohibited” and could “be used arbitrarily to discriminate against unorthodox lifestyles.” The article quoted an unidentified police officer who pinpointed the aggravation: “What they really need is a law that says you can’t wear your hair up in a point and dyed purple…. “
Pedler sided with youth in another free speech controversy, this one sparked by University of Utah students who protested the university’s economic ties with the apartheid South African government. The students erected several shanties on campus. When the administration ordered them dismantled, the ACLU stepped in. As in the case of war protestors, they defended the students’ right to free speech. University of Utah president Chase Peterson argued that the shanties were an “attractive nuisance” and an expense for university security to protect.
In an amicus curiae brief the ACLU argued that “students should feel free to present and be exposed to diverse ideas on a college campus. Intellectual and academic freedom means very little if the extent, substance, and means of expression are arbitrarily limited.” The brief found the university’s “capricious” and “cavalier” ruling such “a sweeping and unjustified effort to stifle expression, it cannot be sanctioned [p.61]under any constitutional analysis.”
The students wrote to thank Pedler for her support. Once they had made their point, however, the shanties and the rest of the protest disappeared.
At age thirty-nine, with her master’s degree in philosophy completed except for her thesis, Pedler decided it was time to move on, telling the Tribune that her “level of outrage” was waning and that “a good level of outrage is a qualification for this job.” So in 1986 she moved to New Orleans to head the Louisiana affiliate. There many issues were literally black and white and sometimes violent. For instance, the board president’s home had recently been bombed. Pedler would later view her tenure in Louisiana as an out-of-the-frying-pan-into-the-fire experience. “I thought I was pretty street smart coming out of Utah, but Louisiana was tougher any way you look at it.” However, she did gain a staff attorney, a fund raiser, and a lobbyist in her new position.
She left Utah feeling proud of the victories the ACLU had achieved. Some were still reaching final conclusion, such as the Amos case that awaited word from the U.S. Supreme Court, but others had established legal precedent and made a lasting impact.
“The ACLU frequently fights its battles out of court,” Pedler’s “exit interview” with the Tribune explained. “Sometimes all it takes is a carefully worded letter.” Pedler cited her discovery that, in Cache County, people who applied for public assistance had to state their religion and give a contact person in their church. “We simply wrote a letter and the practice was quietly dropped.… That usually takes care of it. It’s not the kind of thing that gets in the paper but it’s as effective as filing a lawsuit.”
As Pedler prepared to leave, ACLU members pulled together to maintain the work load. Board member Jeff Montague recruited his wife, Nina Mitchell, an attorney in the state attorney general’s office, to fill in as interim director.
Pedler’s parting words for Utahns were sobering: “I wish everyone could have this job for two weeks. If Utahns could only hear and see what went on in this community, they’d realize there is no such thing as liberty and justice for all.” Still she encountered “grudging respect” [p.62]for the ACLU. She had learned that “the struggle for civil rights is a struggle for people’s hearts and minds. The laws will change later.”
Unknown to Pedler, the community’s “grudging respect” for the ACLU was demonstrated after a notorious incident in October 1985 when a pipe bomb exploded on the sixth floor of the Judge Building, three levels above the ACLU office. A young businessman lay dead, and an unprecedented murder and forgery investigation was launched that would rock every power structure in the state. That morning, the investigators gathering nails, pipe shards, and human remains needed a temporary command post. They considered an office on the third floor—then read the sign on the door—”American Civil Liberties Union of Utah”—and decided to establish headquarters somewhere else.