by Linda Sillitoe
Conception in Utah
[p.13]The idea to organize a Utah affiliate of the ACLU was conceived in the fertile environment of the University of Utah Law School in the mid-1950s. Professors there, like many nationwide, were alarmed by the activities of Senator Joseph McCarthy and the congressional investigation of American citizens. In addition, they were keenly aware of the civil rights issues beginning to smolder in the South.
World War II had left Americans vulnerable to insinuations of an enemy within—communism—but simultaneously people of all races, ethnicities, and genders were determined to claim full citizenship. People of color had fought in the war, people previously unemployed had gone to work, and the GI bill had made higher education a reality for working-class people. All in all, Americans’ vision of themselves was changed, and the change demanded expression.
Author Samuel Walker wrote of the decade between 1954 and 1964, “These were great years for the ACLU, as it played a leading role in virtually every major Supreme Court decision, and, in several, directly influenced the court’s thinking.…” During that decade the ACLU’s membership soared from 30,000 to 80,000 backed by staffed affiliates in seventeen states. “A new sense of freedom was in the air: An increasingly educated public expected the freedom to read without restrictions imposed by religious moralists,” Walker wrote. “The sexual revolution challenged censorship in the arts and restrictions on birth control, eventually leading to a new concept of privacy. And in 1960 [p.14]the sit-ins gave political participation a new personal dimension.”
The impetus was hardly lost on those who formed the nucleus of the Utah ACLU. A few years after its inception the affiliate would receive its national charter and, decades later, become self-supporting. By the time the chapter declared financial independence, it would be embroiled in complex, heated lawsuits involving national issues.
In some respects, the Utah ACLU deviated from the national course. Some issues never blossomed in Utah, or they took a different form, such as in the early 1990s when Utah resisted the national campaign to challenge the religious right. Utah’s own church/state patterns dominated. Nor would the national drive for workers’ rights find much resonance in a state where these were essentially undeveloped.
In Utah two issues provided continuity: prisoners’ rights and church/state issues. In fact, the propensity to square off with the LDS church left Utahns bemused, since the first person to lift the ACLU banner in Utah was the oldest son of a Mormon prophet.
Spencer LeVan Kimball, professor and acting dean of the University of Utah Law School, became, in the mid-1950s, the first ACLU representative in Utah. Kimball’s father, then Apostle Spencer W. Kimball, would later become one of the most influential of all LDS church presidents. By that time the Utah ACLU was firmly ensconced and the younger Kimball had left the state. However the potential irony played out on a larger scale. Under President Kimball’s leadership, the LDS church would playa crucial role in defeating the Equal Rights Amendment nationwide, despite the vigorous efforts of the national ACLU’s Women’s Rights Project to achieve ratification.
In the 1950s, all of that still lay in the future. Spencer L. Kimball and others found initial impetus in a notorious murder in southern Utah in which the defendants received woefully inadequate representation. The case was championed by Salt Lake City attorney A. Wally Sandack who became interested in the embryonic issue of defendants’ rights. Kimball, Alfred Emery, Ben Dykstra, Sandy Kadish, Adam Duncan and others sought such allies as Sandack while the ACLU was still coalescing. Kimball, for instance, signed amicus briefs for civil rights lawsuits as a law professor rather than as an ACLU representative.
Kimball left Utah with mixed feelings in the summer of 1957, lured [p.15]by a tenured professorship at the University of Michigan Law School. He had considered running for political office, probably the U.S. Senate. “I would have felt a little uncomfortable trading on the family name running for office, although I know it’s done all the time,” he said later.
Besides, he reasoned at the time, the seat was held by Senator Arthur Watkins, a Republican considered unbeatable by the disorganized Democratic Party. And Kimball would have to beat Frank (Ted) Moss in the primary. But when Moss unexpectedly triumphed, it left Kimball wondering if he had missed a chance. Resettled in Michigan, he helped organize the ACLU in Ann Arbor, though in later years he left the organization, discouraged that it pursued issues he considered frivolous, including that of public prayer.
In 1957, according to Adam (Mickey) Duncan, Kimball had a parting request: “I want you to do something for me, Mickey. I want you to take over my ACLU post.” Duncan agreed. He and Kimball felt that the civil liberties banner should be carried by “at least a nominal Mormon,” as Duncan identified Kimball—or better yet by an active Mormon, as Duncan was. An “insider” would know the customs and the parlance peculiar to Utah and could work from within cultural assumptions “outsiders” tended to bypass or misunderstand entirely.
Duncan’s family was of pioneer stock. He had filled a mission to South Africa, which, in fact, fired his lifelong interest in civil rights. While preaching the LDS faith, he and other missionaries were instructed to avoid African and “mixed blood” men. Even in the 1940s
Duncan “realized the vicious folly of that policy.”
While working his way through law school, Duncan taught at the LDS seminary adjacent to East High School. He mused later that his liberal views separated him from the norm. His teaching contract was not renewed after he convinced students to “squander” their graduation party fund by replacing the vandalized stained glass windows in a nearby Baptist church.
As a leader, Duncan perpetuated, perhaps unconsciously, a policy toward conservative Mormons similar to Brigham Young’s touted philosophy toward native peoples in Utah Territory: “It’s better to feed than to fight them.” Given the number of LDS church members versus ACLU members, that policy of conciliation and education would remain [p.16]strong in the Utah affiliate.
Nationally the ACLU was split internally on issues of tactics. One group, led initially by Roger Baldwin, Norman Thomas, and Scott Nearing, favored direct action and heightened rhetoric to sway public opinion. The other group, which included attorneys Walter Nelles and Walter Pollak, believed in litigation. The former group placed the ACLU on the map of public awareness. The latter group, Walker wrote, “patiently carried test cases to the Supreme Court, establishing the ACLU tradition of legal craftsmanship.”
In Utah minority issues became a primary concern for Duncan, knowing that minority defendants fared poorly within the legal system, especially those who did not speak English fluently or understand the courts and legal rights. But Duncan insisted on appeals to reason and respectability. He pled with national ACLU officials for local autonomy, arguing, “You don’t slap a Mormon in the face. You try to talk him out of what he wants in a reasonable way. You don’t try to bully him.”
In another state such sensitivity to religious homogeneity might seem excessive. In Utah it scarcely needs articulation. The ACLU was formed to confront government not religion, but here contending with judges, legislators, and politicians implies suing bishops or stake presidents.
Raising issues meant opposing church authorities. Virtually every confrontation with civic authority would, by extension, thumb its nose at the unofficial collective authority—the Mormon church.
When Duncan accepted Kimball’s spot, he believed that his people’s “loving side” would surface. Utahns believed in goodness, industry, and volunteerism. At church they sang, “All is well,” and tended to believe that all should be well. Idealism was often salutary, for when problems were acknowledged they were quickly solved.
In 1958 the Utah affiliate was awarded its first charter. One civic-minded businessman, Ben Roe, recalled the formal organization in his autobiography, A Blend of the Two: “I had been a member of the national ACLU for many years before a chapter was organized in Salt Lake City. During that time I worked with Reverend John Wade of the Campus Christian Center on a very similar organization…called the Citizen’s Organization for Civil Rights.…”
[p.17]He continued: “One Sunday morning in the fall of 1958, I saw a little note in The Salt Lake Tribune that an organizational meeting for a Utah chapter of the ACLU was scheduled to take place Monday night…in the rotunda of the Utah State Capitol Building.” He immediately arranged to attend. “I was elected treasurer,” he wrote, “which became a seventeen-year obligation.”
Finances were, of course, critical. Duncan lobbied national headquarters to be able to keep most of the local dues within the state. Every affiliate leader to follow Duncan would juggle twin concerns—the unique lay of the political landscape and limited funds.
The Campus Christian Center dealt with minority issues, as did the National Association for the Advancement of Colored People. In 1948 the local NAACP successfully protested the City-County Building’s refusal to serve African Americans at its lunch counter. Meanwhile Duncan lobbied ranking Utahns, never accusing anyone of racial prejudice but rather reporting a “perception” that injustice occurred. He appealed to Utahns’ desire to be viewed as decent, mainstream Americans rather than as survivors of a radical, evangelical sect. In fact, David O. McKay, current LDS church president, was the first Mormon prophet never to have practiced polygamy. Also, Utah was a small state in population and the LDS church tiny among world religions. Utah’s cultural memory of antagonism from outside aroused an immediate reaction of feeling outnumbered or even persecuted.
Quick to shine a positive light where he could, Duncan honored those who publicly supported civil liberties. When Utah Supreme Court Justice Alan Crockett wrote a dissenting opinion on the treatment of indigents, the ACLU presented him with an award at its annual banquet, beginning an enduring tradition.
Nationally the civil rights movement simmered under a lid maintained by the Dwight D. Eisenhower administration. In Utah the African-American population was so proportionately small that many residents disregarded local implications. A century earlier African Americans had been among the earliest explorers and settlers (the latter both slave and free) of the Great Basin. Slavery was legalized in the Utah territory and continued for a decade. Although the Saints proclaimed their loyalty to the Union, they viewed the Civil War as the proclaimed [p.18]apocalypse preceding the reign of Jesus Christ and stood ready to lead at his second advent. More practically, they had their own gripes with the federal government, which had sent an army to keep watch on them.
Nor did many Utahns in the twentieth century think twice about barring African Americans from hotels and restaurants. Segregation operated in common aspects of everyday life. Decades after the civil rights movement brought change, Utahns hardly noticed the scarcity of black retail clerks, schoolteachers, government officials, or police officers even along the populous Wasatch Front.
Striking the battle against prejudice, Mickey Duncan did not realize the resilience of this indifference. He was elected in 1956 as a Republican to the Utah House of Representatives. The same year, he chaired the Utah Advisory Committee to Eisenhower’s United States Commission on Civil Rights. As an attorney and the youngest House member, Duncan also served on the judiciary committee, which, among other tasks, set the standards for paying judges. In those days no one chided him for talking informally to various judges and law enforcers about minority rights.
Whenever a petty crime occurred, Duncan remembered, the police tended to bring in Hispanic, Native American, and African-American youth for questioning. “It was like [the movie] Casablanca when the police chief says, ‘Round up the usual suspects,’” Duncan reminisced. He dropped in on the police chief to discuss the “sweeps” of minority neighborhoods. “I told him the police were at least perceived as doing this even if it wasn’t true. ‘If you have to round people up, at least don’t do it by race,’” he urged, and the chief agreed.
Heartened, Duncan then visited city court judges Maurice Jones and Paul Grant and discussed the dilemma of suspects who didn’t speak or understand English. Did the court call in translators or advocates for such people? “Bend a little bit when you get a defendant like this,”
Duncan encouraged. “Help us stop the sweeps.” Conditions seemed to improve, and at the next ACLU banquet awards went to the police chief and the judges for their sensitivity to civil liberties. Despite such efforts, discrimination was ingrained. Blacks and Asians had trouble buying houses; Jewish people were excluded from club membership; businesses double-charged American Indians, espe-[p.19]cially near Utah’s reservations; and minority citizens could not rent a motel room.
“Again…we find that Negroes encounter more offensive discriminatory practices and of greater severity than any other ethnic group,” Duncan and his committee wrote in one report. “They are accorded unequal treatment in opportunities for employment, public accommodations, and, most severely, in housing.”
In both Salt Lake and Weber counties “the vast preponderance of the population live in ‘ghettos’ or poor, overcrowded areas,” they wrote. “A Negro must pay a higher down payment, higher purchase price, and accept less favorable terms than a non-Negro in purchasing a home outside of his district…,” the report continued. In predominantly Caucasian neighborhoods, “virtually none of the apartment houses or other rentals are open to Negroes.” When public accommodations served African Americans, the report claimed, they charged them higher prices than others.
Although Utah’s schools had never practiced racial segregation, the report explained that a “Negro teacher will have an extremely difficult, perhaps impossible, task in finding employment.…” A 1960 graduate of the University of Utah was refused a teaching position because he had not scored an A average in college. “Similar academic standing has never been required of white teachers,” the ACLU noted. Despite this injustice, a few blacks were employed as teachers in Ogden, and several Japanese in Salt Lake City and elsewhere. ‘‘The employment of Japanese teachers invariably requires extra or exceptional justification,”
In both 1957 and 1959 Duncan threw his energy behind a “toothless” civil rights bill in an effort to begin changing attitudes. The bill stated that people seeking public accommodation could not be unlawfully discriminated against. It sustained what had already become federal law.
Toothless or not, Duncan knew his bill would be seen as a shark. He needed clout from some established authority so the bill could at least pass the Senate rules committee, which included several Mormon bishops. Duncan regarded a fellow attorney, Marion D. Hanks, an effective public speaker. Under David O. McKay, Hanks had been ordained to the LDS First Council of Seventy, a tier just below the [p.20]Quorum of Twelve Apostles, and Duncan knew of Hanks’s sympathies toward civil rights.
“I called Duff Hanks at home and explained the bill,” Duncan related. “Duff said, ‘What do you want me to do?’” “Come up and talk to this committee and just say what you’ve said at your firesides,” Duncan urged. “Let people see this is the right thing to do.”
“I’ll be there,” Hanks assured him.
Before long Duncan was hand-delivered what he called a thumbs-down letter on LDS church stationery with the designation, “Dictated but not signed.” The letter began “Dear Mickey,” and ended with “Duff.” Hanks wrote that he had delivered a copy of the bill to the First Presidency. “President McKay’s secretary, upon my inquiry, told me that the president had talked with her about it and felt it could conceivably be very embarrassing to some church institutions.” He continued, “I did not talk with President McKay or any members of the First
Presidency about the matter, although I had hoped they would invite me to do so and explain our difficulties.”
He added: “Independently of the president’s thought, I had come to the conclusion that while I am entirely in sympathy with your purposes in introducing the bill, it could well be a matter of grave concern to the church and of real damage should any crusading ‘liberals’ assail us through our institutional establishments.” He used the Hotel Utah as an example. “The thought of a dozen visitors making repeated demands upon the hotel, for instance, leads one to consider some grave possibilities.” The Hotel Utah was a grand showpiece, owned and operated by the LDS church. Duncan further reflected on the possibility of integration at the Deseret Gym, a tax-exempt club segregated by gender and frequented by high-ranking LDS leaders.
Decades later a boyhood friend of Hanks recounted the atmosphere in Salt Lake City during this period. Myron Q. Hale, who would become a professor of political science at Purdue University, worked as a teenager and college student in the lobby of the Hotel Utah prior to the year 1951. Hale wrote in a letter: “Perhaps the awakening for me was the treatment of blacks by the Hotel Utah. As a night desk clerk at the hotel, I was told that blacks were not to be given rooms should they [p.21]attempt to register.” Hale recalled that African Americans would be directed to the recently integrated Hotel Newhouse, a traditional competitor with the Hotel Utah. “The words were, ‘I am sorry but we are filled to capacity, but I could attempt to obtain a room for you at another hotel.’”
Painfully Hale recalled a scene during the patriotic years of World War II. “I’ll never forget the night sometime in 1942 that an army captain, who was black, with one arm missing, and on his uniform a chest full of ribbons, attempted to register at the Hotel Utah,” Hale wrote. “I was ashamed, but I said, ‘I am sorry, I cannot lie to you. Hotel policy prohibits my assigning you a room…. I will, however, call another hotel and try to obtain a room for you.’ The captain said nothing, and I made the call.” The Hotel Newhouse was full that night, so the captain spent the night sitting in the hotel lobby.
Hale recalled another incident that would become infamous. “I was at the Hotel Utah desk when [singer] Marian Anderson was forced to use the freight elevator after her performance in the Mormon Tabernacle.” During her stay at the hotel, Hale said, “the rooms were ‘blank’—no name—and no information was to be given to the newspapers or anyone else.…She took meals in her room.”
Despite this climate of ingrained prejudice, Duncan believed that by 1959 his bill’s chances of success had improved over its failure in 1956. This time, however, he could not get another legislator to co-sponsor it, and so the ACLU chief presented it alone.
“On March 14, I gave the best speech of my life,” Duncan recalled. He pleaded for an end to all inter-racial rancor including the bitter feelings toward Japanese Americans left over from World War II. The bill passed the House of Representatives with an overwhelming 80 percent, then sailed on to the Senate.
University of Utah political science professor J. D. Williams credits Duncan’s fiery speeches and astute politics. “If it hadn’t been for Mickey Duncan and the ACLU, progress would have been dreadfully slow in this state,” he told The Salt Lake Tribune in 1993. “‘Mickey had a way of getting people to see the light,’ Williams said. ‘I consider him one of the most important civil-rights leaders this state has ever had.’’’
At the time, Duncan’s triumph in the House of Representatives was [p.22]short-lived. To get his bill through the Senate, he approached Sherm Lloyd, a future U.S. congressman who was then Senate president. “I want that bill debated on the floor of the Senate whether it can pass or not,” Duncan told him.
“Well, the majority and minority leaders don’t want it on the floor,” Lloyd said.
“I talked with Clyde,” Duncan insisted, referring to Governor George D. Clyde. “He’ll sign it.”
The bill perished quietly in committee. Despite Duncan’s stout belief that a lot of good resided in Mormon bishops and the other lay churchmen filling the legislature, he concluded bitterly that if “by their fruits ye shall know them,” his fellow Mormons had proven themselves unenlightened.
Duncan was especially unhappy with one man, despite the House victory. House speaker Sheldon Brewster, a Democrat, headed the “sifting committee” which directed legislative business to the floor. If Brewster didn’t approve a bill, only a two-thirds vote of the body could bring it to the floor. Brewster fought Duncan’s bill vigorously.
Brewster was a motel owner and realtor who resisted accessibility for African Americans. As a Mormon bishop in 1939, Brewster initiated a petition, gleaning 1,000 signatures, to relocate African-American residents living just south of the city center to a ghetto farther from downtown. This district, wrote historian Ronald Coleman in Peoples of Utah, “would be located away from the City and County Building where visitors to the city would not come in contact” with them.
According to Coleman, “Brewster employed a local Black in the attempt to persuade other Blacks to sell their houses and agree to be colonized in one location, but he failed to secure their cooperation.” To the contrary: “Blacks rose up in indignation and marched to the Capitol to protest Brewster’s action.” Though denied, Brewster’s petition to the Salt Lake City Commission reflected the current state of the housing market in Utah, for restrictive covenants in deeds and contracts limited options. The area Brewster wanted to purge lay within the LDS Liberty-Wells Stake, where Brewster later served in the stake presidency.
Near one session’s end Duncan decided he should resolve his disagreement with Brewster and paid his office a call. “Sheldon, I don’t [p.23]want this session to end with me feeling so angry with you,” Duncan confessed to the older man. “Let’s just part friends.”
“Sheldon was unctuous,” Duncan reminisced, “and said, ‘Mickey, I’m glad that in your heart you know I’m right.’
“‘That’s not what I said.’
“Sheldon pointed to a spot on the carpet and said, ‘You know, Mickey, every morning I kneel down right here and pray about the bills that are in the hopper. Then I call President Moyle [LDS first counselor Henry D. Moyle] and tell him, ‘These are the ten bills that will be submitted today.’ I ask him for his suggestions. We talk a little bit, and those bills he suggests are the bills that I call out of committee. So you see, Mickey, the Lord’s work is being done here.’’’
This did not fall happily on the ears of the ACLU president. “I said, ‘Sheldon, I’m sorry I came in here.’’’
Nearly forty years later, white-haired and still practicing law across South Temple Street from the LDS Church Administration Building, Duncan would retell his experiences. “The legislature is probably better than we deserve,” he mused. “I look at my religion as a heritage; my grandparents walked across the Great Plains. But the domination of religion in Utah is as bad or worse now as it was then, maybe a little more subtle.”
Although Duncan found church and state locked in a solid fist over civil rights, he also found the fingers beginning to loosen. Duncan would lead a civil rights commission for Utah’s new Democratic governor, Calvin L. Rampton, elected in 1964, as well as the local federal commission, all the while becoming impatient with sluggish process.
The national advisory committee met in various areas of the state to accommodate its diverse and far-flung membership. The Reverend H. Baxter Liebler in Bluff, near the northern border of the Navajo Nation, always brought his dog to meetings. Following one meeting in Bluff, Duncan went into a cafe in nearby Mexican Hat and ordered a beer. He noticed four or five Navajo men there and realized that the bartender was charging the Native Americans $1.00 per drink to his own thirty-five cents per drink. He confronted the bartender, who explained that these men were Navajos and were getting drunk, so he charged more.
[p.24]Duncan told him about his anti-discrimination bill. The bartender was not impressed. “He said, ‘Get the hell out of my bar,’ which I did.”
Although the national advisory committee worked hard, Duncan came to doubt that President Eisenhower took their work seriously. The fifty committee chairs and their spouses were invited to a lunch in Washington, D.C., at which the president was scheduled to speak.
However, Eisenhower, clad in golf attire, arrived half an hour late, “clearly snatched off the links,” in Duncan’s opinion. “He said, ‘You people are doing good work, and I encourage you to continue. Thank you very much,’ and left. I thought it was a brilliant way of saying, ‘I don’t give a damn about you people and what you’re doing.’’’
Similarly, Duncan said, when the state civil rights commission inquired too vigorously into employment hiring and firing practices, the “word came down that we were going to embarrass the governor.” Although Duncan found his three-pronged effort for change painfully slow, the national ACLU was picking up momentum. National staffer and Mountain States director Dorothy Davidson later recalled that during those years money and memberships poured into the ACLU. The running joke was that they could send out a piece of toilet paper with the words ACLU on it, and a certain amount of money would come in.
Despite difficulties, Duncan and his colleagues built the Utah ACLU into a genuine, though subsidized, affiliate. On July 15, 1959, Duncan issued a “Dear Member” letter on official letterhead announcing the chapter’s national recognition. The executive committee, consisting of Stephen P. Smoot, Barry N. Sigel, Charles Edwards, Pat Coontz, Leon Ward, Allen L. Hodgson, Albert Fritz, and William G. Fowler, met in September to plan the annual meeting. The affiliate celebrated on October 27, 1959, at the Young Women’s Christian Association building at Third South and Third East streets.
Before the year’s end a “bird dog” committee was formed with Steve Smoot as chair. “Snoopers” were assigned to monitor the NAACP, city hall, police station, newspaper columns, police court, bail bondsmen, and juvenile court to spot issues. Although no major litigation developed, the chapter hoped that the very presence of the ACLU would promote fair play and civil liberties.
Meanwhile Duncan and others continued their informal education [p.25]program. “I talked to the owner of Lamb’s Restaurant,” Duncan recalled, “and said, ‘You don’t need a statute to let anybody in here, do you?’ He said, ‘No, I don’t.’” The better hotels and restaurants integrated first, Duncan recalled.
In 1961 he introduced the “toothless” civil rights bill again only to find that this time the bill faced even more vicious opposition. “Whereas no one had spoken against the bill itself in 1959, except to suggest that it was not needed, in 1961 critics at the House public hearing spoke openly of the Negro as ‘a thorn in the side of America’: and civil rights legislation was labeled ‘Communist inspired.’ The bill received only thirty yes votes and died in the House,” Duncan’s 1961 report read. By then, juggling the ACLU presidency, legislative work, civil rights efforts, and a law practice was too much for Duncan. In 1960 he passed the ACLU torch to Steve Smoot, who became the second affiliate president.
Like Kimball and Duncan, Stephen Smoot had deep roots that extended into pioneer soil. As a political science major at the University of Utah, he had paid dues and received the national ACLU newsletter unaware that an affiliate had sprouted in Utah. He was concerned about
Utah’s “own little microcosm of McCarthyism” and, like his predecessors, tried to influence the state powers without launching a frontal assault. He too was an active Mormon.
Smoot’s great-uncle Reed Smoot was once a powerful U.S. senator who established Republicanism in Utah with the backing of then LDS church president Joseph F. Smith. Another conservative LDS leader, J. Reuben Clark, later solidified “the aura of the church into conservative politics,” Steve Smoot observed. His direct line of Smoots came from an equally political but Democratic background, and young Steve thought that liberal issues raised Christian sensitivities that the LDS church, which “brought up the rear” in terms of social policy, could benefit from.
Smoot was offended by a local McCarthy-like effort to label liberals as communists. The smear came from the vocal former Salt Lake City police chief W. Cleon Skousen who had worked for the FBI in the 1940s and received a de juris law degree in the East. Smoot observed that [p.26]connections between prominent FBI officials and prominent Mormons in Washington were tight. Ed Brossard, who chaired the U.S. Trade Commission and was a friend of J. Edgar Hoover, was Skousen’s LDS stake president. Brossard’s wife, Laura, was the sister of Samuel Cowley, involved in the arrest of gangster “Baby Face” Nelson. Former U.S. Secretary of Agriculture Ezra Taft Benson attended the same LDS stake. He had become a lobbyist for a powerful agricultural group. Benson later would become an LDS church president, and his sons would appear prominently in rightist politics such as the John Birch Society and Skousen’s organization.
When Skousen first moved to Utah, he became a popular speaker at Mormon gatherings. As such, his impact was significant. Associated first with the Birch Society and later leading his own ultraconservative Freemen Institute, Skousen wielded political clout that was hard to trace but equally hard to miss in the state’s electoral dynamics. Years later Smoot would watch Orrin Hatch, formerly a Pittsburgh lawyer, glean the backing of the Freemen, then astound the local populace by eliminating several popular Republican candidates in convention, win the primary election, and topple tenured Senator Frank Moss. As Steve Smoot led the ACLU in the 1960s, he and Skousen clashed when the latter discussed the communist threat in seminars, tarbrushing the ACLU in the process.
Operating virtually without a budget, ACLU members carried on their activism as best they could. Legal matters were directed to William Fowler and other volunteer attorneys. Civic-minded housewife Pat Coontz was “my Michele Parish,” Smoot would recall. Harriet Brewster served both on the board and as its president, and downtown merchant Ben Roe played an active role in fund raising. The dollars returned by national headquarters from new memberships and dues went to the volunteer attorneys to cover costs.
Meeting frequently at the Jewish Community Center or the Unitarian Church, the group continued to address racial inequalities. The minutes of a 5 January 1965 board meeting were typical: “Hershel Saperstein introduced the three lawyers responsible for drafting the civil rights legislation which Governor Calvin Rampton will present to the Utah legislature.” A fair employment bill, drafted by A. Wally Sandack, [p.27]defined “a series of unfair labor practices by employers, labor organizations, vocational schools, and agencies forbidding exclusion on the basis of race, color, religion, national origin and sex.…” The bill directed grievance claims to the Industrial Commission and a “special civil rights coordinator.”
Alfred Emery, who served as interim president of the University of Utah, lifted Mickey Duncan’s torch in drafting another public accommodations bill. The bill would make the state attorney general responsible to “investigate and conciliate” cases of discrimination. There was “no criminal liability but an individual may bring a private action in the courts.”
William Lockhart introduced a public housing bill which prohibited owners from refusing to sell, rent, lease, or advertise property on the basis of race, color, religion, or national origin. Discrimination complaints would go to the attorney general. While the first two bills proved successful, Governor Rampton was shocked to see the last defeated by a real estate lobby.
The ACLU board considered internal matters at their January 1965 meeting, beginning with some good news. One hundred people had attended a recent meeting, and they had forwarded more than $1,000 to the national headquarters. The board passed a motion to contribute 10 percent of its annual income to the Southern Regional Office for civil rights defense. The board also decided to launch a letter-writing campaign to legislators.
Correspondence between Smoot and national membership director Marie M. Runyan depicted the status of the Utah affiliate. In September 1961 Smoot reported one new member who contributed $100. This member, Smoot wrote, “helps the cause considerably. He joined one of our promotional mailings.” At the year’s end, the seven-month intake had reached $484, with three renewals in October gleaning $20 each. There was a $500 annual operating budget.
In February 1965 the board was told: “Our financial status makes us the smallest affiliate in the ACLU. In 1964 we attained $1,183 of a project goal of $2,000.” The next year’s goal was lowered to $1,700, to be shared by national and local coffers. Still, the 10 percent tithe to the Southern Regional Office would continue.
[p.28]Despite a skinny pocketbook, the ACLU was instrumental in forming a Salt Lake Legal Defender Association, based on a three-year grant from the National Legal Aid and Defenders Association. The affiliate promised to raise one-third of the costs and to recruit volunteers. The affiliate helped make court proceedings more accessible to working people. In April 1965 Hugh W. Gillilan, who followed Smoot as board president, urged the Salt Lake City courts to hold sessions at night and on weekends.
The early, under-funded efforts were sincere but not overwhelmingly effective. Still members took heart in the organization’s sweeping successes nationwide. Toward the late 1960s the increasingly controversial Vietnam crisis became a compelling issue. Stanford University law professor Daniel J. Dykstra chose the “Right to Dissent” as his topic when he addressed the 1966 annual affiliate meeting.
The war compelled the Utah ACLU to join a national effort in 1967 to sue the U.S. Selective Service. Draft boards were punishing war protesters by reclassifying students who participated in the protests. In fact, the University of Utah Chronicle reported ACLU support for Henry Lowell Huey, a junior whose draft status was altered following a memorandum issued by General Lewis B. Hershey who told draft board officials: “There can be no question that an individual who is engaged in violating the very law that deferred him can not very well be acting in the national interest.”
Huey had participated in a sit-in outside the local Armed Forces Induction Center doorway six days before he was reclassified. The Chronicle explained: “The cooperation of ACLU affiliates in filing suits across the nation on the same day was done for dramatic effect,” quoting law professor and ACLU board member John L. Flynn.
“We thought it was necessary,” Flynn told the newspaper, “because the impact of this kind of action by the Selective Service is rather drastic.” Flynn said the reclassification violated freedom of speech despite the appeals allowed within the Selective Service Act. “It’s had an…effect on our campus, and college campuses all over the country, to silence any kind of dissent.…”
Utah participation represented a small part of a massive litigation effort. By 1971 the New York ACLU juggled more than 200 such cases, [p.29]nearly all of which were won. Lawyers in other areas of the country triumphed frequently. Author Samuel Walker explained “the key to their success [was] the archaic and lawless selective service system. ACLU lawyers convinced prosecutors and judges that the selective service system officials had violated their own procedures.” The ACLU victory, Walker claimed, constituted a “legal revolution,” one that “introduced principles of constitutional law into a bureaucratic apparatus previously untouched by law.”
Such a triumph against the national government was heady, and by the early 1970s the Utah affiliate was ready to hire a part-time executive director. Steven Cook, with a brand new law degree in hand, assumed that role for $250 per month, with Curtis Oberhansley acting as legal director. Cook had served on the board of directors while attending law school. He was drawn to this activism by his “firm belief that civil and constitutional rights in Utah were seriously abused.”
The ACLU remained closely tied to the University of Utah; Cook would schedule meetings in the law school’s conference room. He offered on-campus support to the war resistance movement, which resulted in several “love-it-or-leave-it confrontations.” After several individuals were arrested during one sit-in, Cook and another attorney, Dennis Olsen, went to the Salt Lake County Jail to visit their clients, and the jailers refused to let them in.
“I remember pounding my fist on the table and threatening to have a federal judge down there in a matter of minutes—our office was right across the street, and we could have issued a subpoena,” Cook recalled. “After a number of phone calls, they decided maybe it would be okay for us to see our clients. That incident happened because the jail personnel and the police supported the war, and the protesters were considered the scum of the earth.” A future ACLU board president, John Morris, remembered a court hearing where university administrators were called to testify and spoke against the right of students and faculty to protest.
In 1971 an anti-communist meeting in Salt Lake City included epithets hurled at the ACLU. Pat Coontz, then executive secretary of the Utah affiliate, protested to Senator Moss, who replied: “I regret to hear that libelous attacks are being made upon the American Civil [p.30]Liberties Union. Unfortunately, in times of hysteria people can be stampeded to demand suppression of criticism and stifling of free speech.” Moss endorsed the principles of the ACLU but stopped short of offering a solution.
The ACLU continued to extend low-key influence, objecting to the termination of a teacher over her pregnancy, the jail sentence of an individual who was found with a roach clip but no marijuana, and the imprisonment of a convict who was mentally ill. In addition, meet-the-candidates evenings and other educational services flourished.
Questions surrounding decency, pornography, and censorship arose. Let public standards be manifest through public attendance and purchases, the ACLU argued. But Supreme Court Justice William Brennan had set the legal obscenity standard in the Roth decision, writing, “Obscenity is not within the area of constitutionally protected speech or press.” He offered this test: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”
In 1972 the Salt Lake County Commission passed what the LDS-owned Deseret News referred to as a “smut law.” George S. Grossman, by then ACLU board president, denounced the law to the commission and the media, claiming, according to the August 19, 1972, Salt Lake Tribune, that the law “could ban such movies as The Godfather, Midnight Cowboy, MASH, and The Last Picture Show.” The Deseret News reported consideration also of “an anti-hardcore pornography ordinance which would give the city better control over magazines and books displayed in local stores and grocery stores.” In this instance Maurine Brimhall, head of the Citizens for Decency Committee, and psychologist Victor Klein spoke in favor of the ordinance. Stewart Hanson, Jr., an attorney for the magazine distributor Bonneville News, opposed it. Grossman spoke against controlling books and magazines, citing censorship as a “very dangerous weapon,” according to the Deseret News. “He said it has become one of the weapons against our greatest literature.”
Grossman passed the ACLU board presidency and free speech baton to University of Utah English professor Michael Rudick. Criticizing the Deseret News’s coverage for editorial bias regarding “moral [p.31]pollution,” Rudick privately chided Tribune publisher John Gallivan, as well, for refusing a Gay Community Center advertisement. Rudick reminded Gallivan of the responsibility the press bore to avoid censorship and represent all sectors of the community, but to no avail. It would be some time before Salt Lake City newspapers would accept ads from homosexual groups.
The social issues of the early 1970s established a bedrock belief in civil liberties among young people. This restless generation came to consider the ACLU an ally. By 1972 over 50 percent of the national ACLU membership was under forty years of age, with 30 percent in their mid-twenties to mid-thirties. Roughly half had joined within the previous three years. Profession-wise, educators accounted for around 30 percent; business people 15 percent; and government workers, attorneys, and physicians nearly 10 percent. Eight of every ten members were college graduates, and over half of those had graduate degrees. Most were urban—63 percent—and a majority were male—60 percent.
“The preponderance of youth may augur well for future recruiting and financial support,” the affiliate newsletter noted, including a cautionary line about a “disturbing” appeal “among those not members of a well-educated, professional, and financially well-off segment of the population.”
At the end of 1972 the issue of prison rights came to the fore of Utah ACLU concerns. It decided to investigate the Salt Lake County Jail following complaints and rumors. The county had investigated and found no proof of abuse by jailers, but the affiliate launched its own probe and invited any who felt they had been abused to come forward.
In September 1973 the Utah group also filed a class action lawsuit in federal court challenging “unconstitutional practices in the treatment of inmates at the Utah State Prison.” Named as defendants were Warden Samuel Smith, Director of Corrections Ernest Wright, and other members of the board. The complaint alleged that the plaintiffs had been denied their rights to due process in disciplinary proceedings, to adequate medical care, to uncensored and unsuppressed mail, and to freedom from cruel and unusual punishment.
The issue would endure, but this particular lawsuit waned. Steven Cook filed a number of lawsuits against the jailor the prison, but, [p.32]without funds for litigation, was forced to resolve conflicts amicably. The courts would not award attorney fees even if the ACLU won, Cook said, and so replenishing the affiliate’s coffers was difficult. More than once Cook and other attorneys paid the filing fees out-of-pocket and counted the money as a donation to the ACLU. “It was an exciting time, though” Cook said, “involving a lot of hard work and a lot of dedicated people. It was personally very rewarding. Even though our victories were few, they were very sweet.”
“Why is it necessary to impeach President Nixon. And how can it be done?” This headline on a full-page ad in the 14 October 1973 New York Times made the ACLU the first national organization to call for Nixon’s impeachment. Walker wrote: “The Watergate crisis was the most serious constitutional crisis in American history, turning on the fundamental question of whether the president of the United States was accountable to the rule of law.”
In Utah an ACLU-sponsored rally for impeachment indirectly attracted the affiliate’s next part-time executive director. In December, James H. Joy, a doctoral candidate in political science at the University of Utah, accepted the position of part-time executive director for the same salary Cook had garnered, $250 per month. He was recruited after his next door neighbor attended the rally and heard about the search for a director. “He woke me up and said, ‘Jim, I can’t imagine a better job for you,’” Joy recalled.
This time training for the position included a flight to headquarters in New York, “where I wandered around the ACLU office for two days talking to anyone who had time to talk to me,” Joy said. Thereafter, he depended on the large brown envelopes National sent containing directives, newsletters, and circulars, which arrived at his downtown office on Monday mornings. The office contained a small desk and a contrary printing machine. “Every time I’d print anything, everything would be covered with ink, and I was covered with ink.”
Despite these humble beginnings, about ten days into his directorship Joy addressed the Salt Lake County Commission to oppose a pornography ordinance that would ban X-rated theaters. The Salt Lake Tribune reported that Joy “agreed that minors and those who don’t know [p.33]they are going to a dirty movie should be protected,” but he also felt that “laws must be written so the average merchant can understand them. What’s patently offensive to these ladies wouldn’t be to me,” he said. He added that the “community standards” rule was “so vague it won’t be enforced at all.” Roselee Norwood, representing the Catholic Women’s League, said, “You’re almost saying ‘don’t do a damn thing—let nature take its course,’” to which Joy agreed.
Two days later a Tribune editorial paired Joy with television western star Roy Rogers. Titled “Different Outlooks, Same Approach,” the editorial observed that Rogers was “so strait-laced that he has often been accused of shaking hands with the girl and kissing his horse.…” Yet Rogers had recently offered the same argument as Joy, that economic sanctions should be allowed to control movie content. The paper commended both for supporting a “reasonable and proper” way to “get ‘dirty’ movies off the screen” through “economic pressure rather than resorting to liberty limiting laws of dubious constitutionality and doubtful enforceability.”
Joy continued the impeach Nixon drive, lobbying Utah’s new Democratic U.S. congressional representative Wayne Owens, who sat on the House Judiciary Committee. When Joy organized a public forum on the topic, he recruited Owens to speak. But, said Joy: “We could have a press conference and nobody would come. The Deseret News would never cover us. The Tribune would if we pushed them hard enough.” He talked local radio stations into running sound bites from his speeches.
After Nixon’s resignation and pardon, Joy issued a press release criticizing President Gerald Ford’s decision to allow war resisters to be prosecuted. Joy claimed, “Involuntary servitude is punishment, whether called compensatory service or slavery, and is a denial of equal protection of the law.” The case-by-case review Ford proposed would “lend itself to terrible abuse,” probably “on grounds of race, class, and religious affiliation,” and would “preclude consideration for the poor, uneducated, and bilingual population who had the courage to resist the war” but no means to articulate their position in court. Joy’s concluding sally: “It is sad that President Ford could not have given the same consideration to these young men as he did to the man who [p.34]made him president.”
Throughout the 1970s the national organization promoted women’s rights as a top priority. It had long supported full emancipation by applying the 14th Amendment to women. Future U.S. Supreme Court Justice Ruth Bader Ginsburg, then a law professor, became one of three lawyers to write a historic ACLU brief, Reed v. Reed, in which she challenged the automatic preference of men over women as administrators of estates, which she said violated the equal protection clause. The triumph of this case in the Supreme Court proved to be a major breakthrough for the women’s movement.
As the ACLU mounted its campaign, it checked its own procedures for gender bias. Susy Post, of the women’s rights national steering committee, asked for a report on the Utah affiliate’s efforts “to increase the participation of women in the work of the ACLU.” On August 18, 1973, Michael Rudick responded: “If we have no codified affirmative action proposal, it is because we have never been accused of discrimination against women in affiliate affairs in the past.” He listed women in responsible positions, including two recent board presidents and five women serving on the board.
Rudick mentioned the local committee which was affiliated with a coalition of women’s groups. He listed discrimination cases the ACLU sponsored, including “a hearing before the state anti-discrimination committee (won) and a suit to insure adequate budget for women’s intercollegiate athletics at the University of Utah (in process of settlement).”
The Utah affiliate joined National in promoting ratification of the Equal Rights Amendment. The requirement that three-fourths of the state legislatures approve the amendment seemed attainable. However, in 1973 a Utah group backed by the John Birch Society launched a surprise attack and effected defeat in the Utah Legislature. Supporters rallied to try again with the 1975 legislature. Success seemed likely. Just three months before the legislative vote, a poll showed that a majority of Utahns supported the amendment, a figure that was reflected in the legislative make-up.
However, ten days before the House vote, the Deseret News edito-[p.35]rialized against ERA passage and objections on the part of the LDS hierarchy were read from Sunday pulpits. The next poll revealed that a majority of Utahns now opposed the ERA—which predictably failed in the legislature.
A political scientist, Joy was impressed to the point of shock. Those working for ratification had expected that if the LDS church opposed the ERA, it would cost votes, but they had not imagined “a poll reverse by twenty points within ninety days.” “Well,” said Joy, “I knew I was witnessing power.”
As the decade waned and the ERA approached a photo finish, the LDS church’s Special Affairs Committee mounted a massive lobbying effort in crucial states, linking with other conservatives such as the Birch Society and Phyllis Schlafly’s STOP ERA. In Virginia, Arizona, North and South Carolina, Illinois, Missouri, and Florida, Mormons were recruited in worship services, anti-ERA petitions were distributed in church foyers, bishops raised funds and sometimes laundered them, missionaries canvassed key areas with brochures, and Relief Society women were bussed to rallies. The power Joy witnessed in Utah became manifest in other states, though it was not unleashed as effortlessly.
Simultaneously the case of Turner v. the Department of Employment Security was making judicial history as it first ruffled feathers in Utah and then climbed to the U.S. Supreme Court. This resulted from a tip from Joy to Kathleen Peratis, director of the national ACLU’s Women’s Rights Project.
Mary Ann Turner had contested a Utah policy that lost her job and denied her unemployment benefits due to her pregnancy. The local ACLU filed a brief. The Utah Supreme Court told Turner that she should contest her female nature rather than the law—ie., “the great creator organized the differences between men and women.” Joy alerted national headquarters.
On November 8, 1974, ACLU attorney Ruth Bader Ginsburg wrote to Joy from Columbia University’s School of Law listing several precedents the Utah Supreme Court had contradicted, adding, “I would strongly recommend a supplemental brief if time has not run out. One of my students is preparing a memo which should be ready in about ten days. I will be glad to mail a copy.…”
[p.36]Several months later Joy wrote again regarding “an amended brief’ that incorporated “suggestions from Kathleen Peratis and Ruth Bader Ginsburg.” He continued: “As you will see, the Utah Supreme Court is not exactly a bastion of legal scholarship or objective justice. Nonetheless, Turner is now the law of the land in Utah.” He then popped the question: “Do you think that this case is worth appealing to the U.S. Supreme Court?” Joy had not discussed this possibility with Constance Lundberg, Turner’s attorney who had moved her practice to Washington, D.C. He closed with, “Please let me know where we should go from here.”
The answer came in a March 4 letter to Joy from Peratis, who began: “In spite of the fact that the best argument, the due process argument, was not raised … and the time to petition for a rehearing has passed, we have decided to petition for certiorari in the Supreme Court.” In the following paragraphs Peratis made it clear that National would take the case and would not welcome the original attorney’s assistance. “Because you don’t have staff counsel,” she continued, “I presume there is no Utah [ACLU] lawyer’s name we should put on the papers.… I drafted the petition this morning, and we’ll probably be ready to file in a week or two. I’ll keep you advised.”
In November 1975, a year after Ginsburg’s letter, the U.S. Supreme Court overturned Utah, ruling that states may not refuse unemployment benefits to women required to leave their jobs to have a baby. The New York Times called this “a substantial victory for the women’s movement,” affecting laws in twenty states.
Two days later the Tribune carried a response from Utah Supreme Court Justice A. H. Ellet who insisted that the high court erred and was “entering into affairs that are not its business.” Utah Attorney General Vernon Romney called the ruling “offensive,” saying that the federal judiciary should not “presume to decide something that is much better left to our own court.” Despite the naysayers, nothing could dampen the celebration for this milestone, spirited by the ACLU from defeat in Utah to success in Washington and altering employment laws for all American women.
During his tenure, Joy encouraged the growth of ACLU chapters beyond the Wasatch Front in Moab, Ogden, and Logan. In addition, [p.37]cocktail parties and issue-oriented dinners in Salt Lake City drew over one hundred people. One event, at D. B. Cooper’s private club, was oversold, and Joy and the board of directors found themselves on the outside looking in.
“The liberal human rights community hung together in those days with a minimum of infighting,” Joy reminisced. “You’d see all the same people everywhere you went, a lot of collegiality. We’d all support each other’s events.” With help from volunteer attorneys, the affiliate nipped at the impervious Utah establishment by filing lawsuits every few weeks. For instance, they defended a University of Utah student from Greece who had been snagged during finals week in a drug sting in the dormitories. The student pled guilty to a minor charge, then found himself facing deportation. The ACLU persuaded the judge to set aside the conviction and the Immigration and Naturalization Service not to return him to Greece where he would be the target of repercussions for his political views. A compromise landed him in Canada instead. During this time, two young boys also escaped from a private reformatory in Provo Canyon and found their way to the ACLU office where Joy agreed to initiate an investigation. His successor would continue this task.
Colorado’s executive director, Dorothy Davidson, was meanwhile appointed regional director to offer support to western affiliates. Davidson encouraged Joy to apply for the Colorado position she vacated. He was hired, but found that affiliate nearly as broke as the Utah office.
Nevertheless, it was a full-time position with a full-time assistant, and on July 1, 1975, he began a long tenure. He left the Utah board a short list of people to consider for his position.
With the end of the Vietnam war and major civil rights battles, donations and memberships began to decline nationwide. By the mid-1970s, Davidson recalled, “There was no Bull Conner on television with dogs and whips and fire hoses. People didn’t feel the same moral imperative to do something.” But the nation now held elevated expectations of the ACLU, and the ACLU had acquired a heightened assumption about its own future.
In Utah the issues that had gripped the nation for decades were just beginning to gain currency. The state that had voted overwhelmingly to re-elect Nixon had seen him fall. People who had supported the war [p.38]through the bitter end saw veterans return to disillusionment rather than parades. Those who had endorsed racial segregation now found it was socially unacceptable and unlawful. The ACLU, all the while, had gained a quiet but tenacious toehold in the granite of Utah’s power structure.