by Linda Sillitoe
And Justice for All
[p.209]At first, under Carol Gnade’s directorship, it seemed the affiliate’s improved clout and communications formed stepping stones that might converge into a bumpy but convenient road, with litigation an unwanted detour. Yet between 1993 and 1996 questions of how Utahns lived, where they prayed, what they might be taught in schools, where and how legislators performed governmental business, and how murderers were executed all crisscrossed in a busy intersection of church and state. Separating the two in Utah remained as intricate a task as ever and raised the Utah ACLU’s own split in approach. Increasingly, Gnade juggled conciliation with one hand and confrontation with the other.
Kate Kendell put it this way: “ACLU is a four-letter word in Utah. In Utah there’s a mentality that you don’t make waves. When you have an organization like the ACLU, whose mission it is to make waves, it’s antithetical to the rest of the population.”
In 1993 a friendly spirit promoted conciliation, although major lawsuits remained unresolved. The affiliate had not yet prevailed in the appeals regarding prison medical reform and abortion, and the Utah Supreme Court had yet to rule on prayer in government meetings.
However, telephone calls from Governor Leavitt’s aides, a cooperative ambience in the legislature, ongoing media coverage, and the scores of supporters who turned up to lobby all bore witness to the affiliate’s power.
The year 1993 was the first for the affiliate to remain in financial [p.210]black ink. In fact, the $60,000 in the bank at year’s end might have caused Jim Joy or Shirley Pedler to swoon. “I feel we have to act like a business even though we are activists,” Gnade said. She enlisted the ongoing support of major donors, assuring the affiliate’s stability for the foreseeable future.
Perennial issues such as censorship took a new tack. Nationally and locally homosexuals had initiated a quest for acknowledgement—if not acceptance—by American society. Executive director Shirley Pedler had discussed homosexual rights with the media a decade earlier, but practical matters had affected Utah very little. With the 1992 election of Bill Clinton, the gay rights movement clarified its issues and showed political muscle, particularly concerning homosexuals serving in the military.
In Salt Lake City several gay and lesbian groups had organized quietly and, with the change in times and attitudes, become vocal. These groups took their turn in the “rights revolution,” asserting a small but increasing influence in elections and with the media. This occurred despite a powerful stigma against homosexuality, reinforced by the attitude of many churches including Utah’s predominant religion. Certain Protestant denominations grappled with gay issues among parishioners and within the clergy, but the LDS leadership simply denounced any and all homosexual activity as excommunicable sin. In Utah’s child-centered culture, the controversy focused on the control of information, especially any tone of tolerance or acceptance appearing in public school textbooks.
The matter erupted in March 1993 when the state textbook commission attempted to liberalize its policy on texts used in high school classrooms. The commission was prepared to approve texts that acknowledged homosexuality as an existing lifestyle as long as it was not promoted as an equal alternative to heterosexual family life.
This seemed a minimal concession to reality, especially given the pressures on teenagers who believed themselves homosexual or wondered about their sexual identity. However, perhaps with those same students in mind, opponents considered any neutral or accepting mention of homosexuality a dangerous provocation. The state’s higher-than-average teen suicide rate was examined by [p.211]public agencies and within the media from time to time. No firm answers existed as to why Utah teens ended their lives at a higher rate than teens in most areas of the nation. However, Utah’s birth rate far exceeded the national average, and the children born to the post-World War II baby boom generation were coming of age. This placed pressure on schools, jobs, activities, and, inevitably, on young people.
In addition, the high value Utahns placed on achievement presented a possible factor; many parents emphasized higher education, sexual abstinence which predicated young marriage, rearing large families, and successful employment. Also, LDS males were strongly encouraged to serve two-year missions in their late teens and early twenties. Ideally incoming missionaries were sexually inexperienced and remained celibate until they returned home to marry. Homosexuality found no place in most people’s expectations for the state’s youth.
The Gay and Lesbian Youth Group formed in the late 1980s to discourage drug or alcohol use, increase self-esteem, provide a social climate, and issue information through guest speakers and peer counseling. Yet the founders and leaders acknowledged, at root, a grimmer Goal—to prevent teen suicide, which to them seemed astronomical among teens who believed they were homosexual.
Commonly these youngsters dropped out of school, where they felt ostracized. Many were banished from their homes when their parents discovered their sexual inclinations. The youth group aligned with longstanding gay community organizations and welcomed disenfranchised youngsters every week. To this community, any tolerance indicated in school textbooks seemed not only a positive step for society, but possibly a lifesaving boon for anxious teens.
A State Textbook Commission meeting in June 1993 saw heated disagreement from individuals and a variety of groups, with the archconservative Eagle Forum strongly present. Recently the forum had been credited with gutting a hate-crimes bill, considered by the legislature following a virulent outbreak of assaults and murders of homosexuals. The forum clearly came to the textbook meeting prepared to resist any softening of the anti-gay line.
A report in the Tribune quoted textbook commission member Michael Bennett in explaining the commission’s original decision to [p.212]accept textbooks with a moderate approach short of advocacy. “We were looking at it from the standpoint of tolerance,” he explained. “We would not have adopted a book that advocates a homosexual lifestyle. We simply wanted people to be more tolerant of choices made by others.”
Such an uproar ensued, however, and by the meeting’s end, the State Board of Education decided to continue the prohibition of any text that mentioned homosexuality. This essentially banned updated health and psychology texts. Exactly what could be discussed in the classroom remained vague. The state director of curriculum explained that teachers could discuss homosexuality as long as they did not say “that it doesn’t matter what a person’s sexual orientation is.”
The Utah affiliate began to consider a lawsuit. Kate Kendell viewed the issue as an abridgment of free speech. The policy prevented teachers from disparaging any profession, race, or religion while disallowing any positive or neutral comment on homosexuality. “This prohibits any kind of discussion that’s comparative or analytical.”
The Utah ACLU viewed Gayle Ruzicka and her Eagle Forum as formidable opponents since she could quickly mobilize a zealous lobby. When the ACLU opposed the forum, the negative, nasty, and anonymous telephone messages left on the hotline noticeably increased. “Instead of the Christian right, we have Gayle Ruzicka,” Carol Gnade would say ruefully.
Actually Ruzicka was not far removed from the national Christian right, and the alliance would tighten. For years she had attended the Christian Coalition’s national conference. By 1994 a chapter of the Christian Coalition functioned in Utah, boasting more than 5,000 members by the year’s end. Reverend Vaughn Milliron, chapter president, told the Salt Lake Tribune he was uncomfortable rubbing shoulders with Mormons, given major disparities in their theological views. Yet the coalition fit snugly into the political mix of “pro-family” Mormons, including the forum. The violence and open hostility seen elsewhere in the nation around such groups deferred to Utah’s nicer style, the Tribune reported. Yet the issues were battled fiercely.
In September, as public schools convened, the textbook question naturally surfaced as teachers and administrators debated the appropriateness and legality of various books. For instance, the text Psychology: [p.213]An Introduction was proposed, but refused by the commission due to one sentence on page 567: “Homosexuality itself was no longer considered a disorder unless it caused the person significant distress.”
Gary Crump, Salt Lake City sales representative for the publisher, Prentice Hall, told the Tribune: “You really are out[side] of the twentieth century thinking in this country. Whether [homosexuality] is right or wrong, it is factual information.… The state wants to view it as abnormal.”
The Tribune asked Gnade for comment. She described how the affiliate had already been contacted by parents and teachers who wanted the state board’s decision amended. “It seems that educators are being relegated to taking an X-Acto knife to the pages of textbooks to cut out opinions that do not comply with the policy of the board of education…,” she told the newspaper. “It is essentially viewpoint discrimination. Given the demands placed upon our young people living in a complicated world, what we should be giving them is more information, not less.”
An Eagle Forum curriculum monitor, Debbie Simpson, countered by telling the newspaper that the need to find newer, more relevant textbooks was “not an issue,” explaining, “We here in Utah do not want homosexuality as a lifestyle taught to our students when they are young and impressionable, period.”
The Tribune gave the last word to David Nelson, founder of the Gay and Lesbian Utah Democrats. “The books they are talking about have four pages out of 200 pages that deal with homosexuality…,” he said. “If we look at any of those books they are proposing, none of those would be advocating or promoting homosexuality. They are giving explanations.”
The textbook controversy evaded any resolution beyond the discussion ban. In May 1994 Kendell briefed the board of trustees on the implications of a lawsuit against the Utah Board of Education. She explained that the guidelines barred a “vast range of material, including most literature and art that addresses or mentions the subject of homosexuality except to condemn it.” She concluded the guidelines were “vulnerable to challenge” based on viewpoint discrimination, a recent and largely unlitigated concept. The “guidelines at issue here simply go [p.214] too far and do too much,” she wrote. “While a school may have the power to impose some view, [it] should not have the power to absolutely forbid even the mention of opposing ideas.”
That month the State Board of Education approved a parent/teacher guide to help “junior high school students develop healthy attitudes toward sexual behavior.” The Eagle Forum again objected to any information on homosexuality, contraception, and abortion even in the guide for adults. (Utah’s teen pregnancy rate was also high compared to other mostly white populations.) Others said that teachers needed help in gaining and giving correct information, and that teens should be adequately informed on these topics. Finally board members reiterated the state’s policy of promoting abstinence and forbidding teachers to discuss contraception, but approved the parent/teacher guide. Although the issue would lie dormant for several years, when it steamed into the public consciousness even more forcefully, students would be driving the train. By spring 1996 the board approved a new health text, but still no new psychology text that did not mention homosexuality could be found. In addition, a new history text was rejected due to a description of the gay rights movement.
Quite a different complaint reached the affiliate when students returned to classrooms in the fall of 1994. A Provo parent, who had attended back-to-school night at a junior high, telephoned Gnade. One United States history teacher had explained to each rotating group of parents the areas of study, then added: “Of course, all of these teachings in history will be supplemented by our study of the Book of Mormon because it is the foundation of our people.” He later joked, the caller continued, that during lectures he occasionally broke out into “a few Primary songs,” the religious music taught to LDS children.
The complaint came, Gnade said, from a practicing Mormon who was aghast at the teacher’s approach. Gnade replied that she appreciated his outrage but foresaw difficulty in finding many parents who would participate in a public action due to the social and religious stigma that would follow. “I have to admit,” the caller replied, “I’d like to be a John Doe in this, but if you need me, I’ll be willing to go public.”
During this period, the discussion of public discourse dominated [p.215]several ACLU affairs. In October 1993 actor and activist Ed Asner regaled the lawyers, community leaders, journalists, and ACLU donors and members who crowded into the Red Lion Hotel ballroom for the annual dinner. He skimmed over dozens of First Amendment triumphs and failures and challenged the group to maintain continued vigilance. Junior high student Maren Larson was given a special award for objecting to the use of degrading cartoons depicting Native Americans in her school’s yearbook.
Nadine Strossen, president of the national ACLU, visited that month as well, speaking at Utah State University in Logan and at A Woman’s Place Bookstore in Salt Lake City. She not only drew media attention, but an anonymous note threatening to bomb either the bookstore or the affiliate office. Law enforcers surmised a white supremacist group might be behind the threat.
Accordingly three marked police cars parked outside the bookstore on the evening of October 28 while Strossen spoke to an audience of around fifty. She quickly established a national context for the censorship issue, referring to the criminal prosecution of a Cincinnati art gallery, the stringent restrictions on media coverage during the Persian Gulf War, and the political correctness movement on university campuses.
Strossen laced her remarks with humor, emphasizing that no one ever asked her why she defended free speech-only why the ACLU defended the free speech of unlikable individuals or groups, some of whom seemed dangerous. When she described the “arrest” and eventual “acquittal” of a student’s painting in Chicago, uniformed police officers chuckled along with the audience. Her point was that defending free speech was very nearly an absolute for the ACLU; the sanctity of any group’s rights implied the safety of everyone’s rights.
“If freedom of speech is jeopardized for one idea, then it’s never going to be safe for another idea,” Strossen was quoted in the Tribune. “And history certainly proves the veracity of that theory.”
Around Thanksgiving 1993 the protection of First Amendment rights joined questions around Fourth Amendment rights when twenty-year- old Mark Wilson came to the affiliate office to complain about housing near Brigham Young University in Provo. He faced eviction [p.216]because he had hung posters from the swimsuit issue of Sports Illustrated magazine in his bathroom. The photographs violated BYU regulations, which were enforced by landlords of approved housing located off campus.
BYU required unmarried students under twenty-five years of age to live in supervised housing, but only about 6,000 could be accommodated in campus dormitories. An additional 12,000 found housing in apartments that BYU approved after landlords added university regulations and prohibitions to their leases. The arrangement benefitted BYU by allowing student housing to expand throughout the Utah Valley while still maintaining the standards required on campus. It benefitted landlords by supplying them a seemingly endless pool of well-behaved tenants.
Wilson was not a student but needed an apartment and had found one in an approved complex. He had signed a lease that included restrictions on decor, alcohol, tobacco, drugs, and allowing the opposite sex into the bedrooms. Then he and his apartment had flunked a routine inspection.
The arrangement between BYU and nearby landlords varied from one apartment complex to another. The landlords segregated male and female tenants, families and unmarried tenants, and sometimes they combined students and non-students as long as non-students signed the lease restricting their behavior. The BYU regulations affected—or protected, as the ACLU saw it—around 1,200 Utah Valley landlords. Together their holdings represented 31 percent of the valley’s total housing market and included apartments, condominiums, townhouses, four-plexes, and complexes.
The policy had begun in the 1950s when the number of BYU students exceeded campus housing, and it went unchallenged until 1978. At that time, a young woman hired Kathryn Collard as her attorney, and they appealed to the United States Justice Department. Collard said her client was prohibited from moving into a studio apartment set aside for male tenants. She was required to rent a more costly one-bedroom apartment.
In 1978 the Justice Department and BYU worked out an exemption similar to the regulation allowing universities to provide gender-segre-[p.217]gated boarding houses. It rested on BYU’s status as a church-owned university and the church’s moral code, which prohibited premarital sex. Since that time the housing situation had evolved into various configurations.
Monitoring was performed not only by landlords but by the watchful eyes of other students and tenants. A negative report could bring an inspection, which could mean an ouster for possessing tea bags in the cupboard, beer in the refrigerator, “or, conceivably, the swimsuit issue of Sports Illustrated,” Kendell would tell a reporter, pointing out that all those items were legal for adults.
Aware of the combined power of the Justice Department and BYU in past deal-making, Gnade and Kendell decided to release their information on the BYU housing situation to the media while they sorted and researched the legal options. On November 24 the Tribune quoted Kendell saying the university must modify or remove its policy in the case of non-students.
BYU spokesperson Brent Harker commented, “We’re in an interesting Position…We really try to create a unique atmosphere where people can integrate faith in God with high academic excellence.” Part of that, BYU officials would explain repeatedly to reporters, involved supervising student living quarters whether on or off campus.
Kendell called the policy absurd. Such restrictions could legally be applied to BYU students, she said, but they put non-students “in a position of either not getting an apartment or making them promise not to engage in perfectly legal activities, [which] is an unconstitutional choice.”
The Fourth Amendment issues rose as Kendell read the lease that the complaining resident brought in. One notice stated: “BYU will inspect this apartment again.” The monthly searches of the apartments, occupied or not, were undertaken by the apartment managers in order to keep their status as approved housing. Yet the Fourth Amendment guaranteed every citizen’s right to be free of unreasonable searches.
Privately Kendell spoke with a BYU official who said the university was in the process of modifying its policy; he discouraged litigation. Fine, Kendell said, but insisted on seeing a draft of the new policy quickly. Meanwhile, she and Gnade, along with members of the legal [p.218]panel, debated whether the compliant landlords or the university should be targeted for a lawsuit, if it came to that.
On November 28 the Tribune led its coverage with the landlords’ position. Datelined Provo, the article by Anne Matthews and Michael Phillips began:
Brigham Young University has no greater champions of its honor code than off-campus landlords who require tenants to abstain from drugs, gambling, coffee, and even racy posters. It does not matter if the apartment’s occupant is a BYU student or not.
“There is no place else in the world like this,” says Madeline Hendricks, manager of The Brittany Apartments. “I cannot check on my tenants twenty-four hours a day. We rely on BYU’s honor code and on tenants to tell us when other tenants violate it. It’s a system that works.”
In the same article, Carol Gnade called this system “economic Blackmail… It’s exactly what fair-housing laws are supposed to prevent. Of course, the landlords like it. It’s a kind of conspiracy to take away tenants’ civil rights.”
The article quoted Richard Knapp, owner of the Branbury Park Apartments where the complaint had originated: “Our way of life is threatened… The ACLU, in championing freedom, might take away something important here,” he said. “We’re a group of people living by the standards we have set for ourselves. Other people are free to do what they want, but not on my property.”
Early in December the Tribune editorialized under the headline: “Private School Housing Rules Go Too Far When Imposed on Non-Student Renters.” The column reviewed the situation and closed with:
This isn’t a question of denigrating BYU’s honor code, the Mormon religion, or the high moral standards it espouses. Indeed, underage or irresponsible alcohol consumption, to cite one example, is a terrible epidemic on college campuses. Many parents of college students throughout America probably would be grateful for stricter moral standards of the kind BYU enforces for its enrollees.
But it is unfair and probably unconstitutional to impose a religious [p.219]code on law-abiding adults unaffiliated with BYU as a condition for obtaining housing in privately owned buildings off campus. Surely a compromise can be achieved that could serve BYU’s purposes while simultaneously respecting the civil rights of those renters with no ties to the university.
The ACLU won the initial round without filing a single paper. In January BYU informed the landlords involved that they could no longer impose BYU standards on non-students. That meant landlords could no longer allow students and non-students to share an apartment building—they would have to segregate students and non-students, as well as continuing to segregate BYU students by gender and family status.
Although the new arrangement meant that BYU students would be held to the university’s code while non-students would not, it was clear that the landlords would continue to monitor non-students’ conduct insofar as possible. Tenants would sign a contract requiring conduct “consistent with basic principles of modesty, decency and privacy in keeping with accepted community morals,” according to a BYU statement, as reported by the Tribune.
The new policy specifically addressed the sanctions imposed on Mark Wilson and other non-students but failed to satisfy the Utah ACLU, which objected to the overall principle of applying religious rather than legal standards to tenants’ lifestyles. Commented Gnade, “We are in total disagreement with this new policy and believe that it still requires a religious test to acquire housing in Provo… We are researching our next response to this issue. This is not the end of it.”
The other side also expressed discontent, for the article quoted landlord David Freeman saying, “The ACLU didn’t do anybody a favor… Many single people want to live in the BYU environment and because of the ACLU’s actions, they are not going to be able to do that.”
The landlord of the Branbury Apartments told the Tribune he intended to monitor his non-students to the extent possible under the new policy. “Even non-BYU students are still subject to some of the rules we as landlords are able to enforce, such as restricting smoking, alcohol, and having unregistered guests spend the night,” he said.
Kendell communicated for months with BYU attorneys regarding the housing policy, but each new twist seemed to bring a comparative (220) constitutional problem. In May 1994 she wrote a memorandum to the board of trustees outlining the continued regulation of non-students’ behavior by their off-campus landlords.
Meanwhile, the affiliate awaited a response from the Justice Department regarding the intent of its earlier decision. By telephone, a Justice Department official had informed Gnade and Kendell that there had never been any intent to allow BYU to monitor housing off-campus, even though the university was allowed to segregate housing by gender because of the church’s moral code. The affiliate leaders asked for this statement in writing.
Kendell informed the board that a variety of complaints had spawned from the BYU policy and the earlier accommodation with the Justice Department. Some plaintiffs could not rent in certain complexes because they were not BYU students. Other plaintiffs were refused housing based on gender or because they were not married or were single parents. In addition, the affiliate was collecting leases in order “to determine what privacy violations we can expect as the landlord tries to enforce BYU’s morality.” Finally, Kendell wrote, the affiliate would debate the timing involved—whether to pull back and allow more offenses to occur before filing the lawsuit, or whether to press ahead.
Eventually the litmus test for the lawsuit became not the code enforced by the landlords, but the overall approach, which the Utah ACLU claimed constituted a religious test. Essentially, the landlords working with BYU discriminated by church membership, the ACLU claimed, for only 1 percent of BYU students were non-Mormon. Additionally they discriminated by gender and by marital status, both of which violated the Fair Housing Act. Finally, they advertised these discriminations in the effort to attract acceptable tenants.
In August 1994, in a complaint written by cooperating attorney Bruce Plenk, the Utah ACLU sued a dozen Provo area apartment complexes and corporations on behalf of three plaintiffs: Wilson, eighteen-year-old Anne Walker, and thirty-year-old Stan Burnett. The first two defendants had been refused available apartments due to their gender, and Burnett had been refused because he was not a BYU student. In addition, Wilson had applied for an apartment as a single parent and been turned away because children were not allowed.
[p.221]The lawsuit asked only for attorney fees and costs for the plaintiffs, but demanded change. ‘The injury suffered by plaintiffs is immediate and irreparable,” the lawsuit read, “and there does not exist an adequate remedy at law.” If the landlords’ policies continued, the lawsuit went on, multiple violations of people’s rights would continue, for the landlords’ policies were “entrenched and will not change” lacking a court injunction.
The ACLU further claimed that the landlords’ actions constituted “a deliberate pattern and practice of violations of the Fair Housing Act” and presented the clear possibility of “irreparable harm and injury” through discriminating by religion, gender, and family status. It urged the U.S. District Court to retain jurisdiction to ensure that the changes became permanent.
Brigham Young University quickly filed a motion to intervene in the lawsuit in support of the landlords and appointed Mary Anne Wood as lead counsel, the attorney who was battling the ACLU on abortion. The ACLU raised no objection to BYU’s alliance, provided the university stuck to the housing issues rather than raising religious or doctrinal concerns that were not addressed in the complaint, Kendell said. The university insisted that it complied with all laws, including the Fair Housing Act, and did not discriminate by religion, race, ethnic origin, or disability.
Then BYU president Rex Lee—previously employed by the Justice Department as solicitor general—immediately linked segregation by gender and governance of students to the LDS moral code. Furthermore, BYU attorneys claimed that the off-campus housing policy had been reviewed by state and federal housing agencies and found to be in compliance. Their precedent remained the 1978 case when the Justice Department had ruled that the education amendment to the Civil Rights Act took precedence over the Fair Housing Act.
Attorney Bruce Plenk insisted that during these instances of approval, the federal agencies had not scrutinized the private landlords and their practices. Religious discrimination was not the only offense, he claimed, for the plaintiffs also suffered discrimination based on marital status, children, and gender. The recent attempt to segregate students and non-students by building, Plenk claimed, had worsened matters for [p.222] non-students, who found apartments scarce in a tight housing market.
Inevitably, the discussion returned to whether the ACLU was attempting to destroy the LDS world view and lifestyle, as provided for BYU students both on and off campus. The ACLU maintained that its concern lay only with the abridgment of rights of people who were not thus encompassed. “The religious beliefs of BYU, its students, and their parents are not at issue here,” one brief read. “The question here must focus on the religious beliefs, if any, of defendants [the landlords], since it is their behavior that is alleged to be discriminatory.”
In early 1995 U.S. district judge David Winder found entirely for BYU and the landlords. He found no guise of religious discrimination in renting to BYU students, for applicants were not asked their religion. He upheld the university’s right to discriminate on the basis of gender due to the church’s moral code and right to provide supportive housing, and therefore to advertise it. The landlords turned down applicants, Winder explained, because they were not students, not because they were not LDS. The family status claim also fell, for Winder ruled that since Wilson was not actually a single parent, he had no standing in the lawsuit. (A precedent for sending “testers” into the housing market had existed since the civil rights movement but was somewhat ambiguous.)
The Utah ACLU could take comfort only in two things: first, that the landlords had been forced by the ACLU protest to remove the BYU prohibitions for non-students, and, second, that Winder ruled the lawsuit had merit and the ACLU would not be charged the other side’s costs.
Of course the ACLU disagreed with the judge’s literal view of student status not equaling, essentially, LDS membership. The affiliate was particularly upset, however, that discriminating by gender and advertising that discrimination had been upheld. Winder ruled that the landlords had not so discriminated because the applicants were not students and therefore not qualified for the apartments anyway. Had they been students, he said, the discrimination was justified by the 1978 BYU exemption. Since the “BYU-approved for men” and “BYU-approved for women” signs posted on rentals were honest, they were acceptable.
The affiliate’s new staff attorney, Jensie Anderson, commented that she believed Winder was “dead wrong” on those rulings. “You can’t [p.223]engage in discriminatory advertising regardless of what your position is.” The ACLU attorneys asked Winder to reconsider his ruling on advertising; should he reverse himself, that would grant them a portion of fees. In the meantime, they discussed with Gnade and the board the efficacy of an appeal.
Even the defeated had to chuckle when they learned that soon after Winder’s ruling Sports Illustrated staffers went to Provo to write an article on two basketball-playing brothers at BYU. The feature would appear in the annual swimsuit issue, amid the kind of photographs that had started the entire ruckus.
While the BYU controversy developed, other church/state questions arose. In December 1993 new guidelines specified the place of religion and holiday celebrations in the public schools. Students would be allowed to express their own beliefs in class discussions or assignments, and they or their parents could waive any part of a course they felt infringed on their freedom of religion. Teachers could discuss religion as related to music, art, literature, law, politics, and history as long as it was presented in context and did not encourage or condemn any religion. High school choirs had a long tradition of performing in LDS sacrament meetings in December; now performances at churches were allowed as long as arrangements were initiated and carried out by students or non-school personnel. However, no prayers could be given at school-sponsored events, and school choirs could not be required to perform in religious meetings.
While red and green bells and chains went up in school windows, a controversy around religious display arose at one site in elaborately decorated Salt Lake City. Both the Society of Separationists and the ACLU protested the presence and placement of a menorah at the Gallivan Utah Center Plaza in honor of Hanukkah. The Separationists threatened to sue the city.
Kendell told the Tribune, “The United States Supreme Court has made it clear that any holiday display which emphasizes or implies government support or endorsement of a particular religious perspective is impermissible.…” She explained, “That standard is religiously neutral. It applies to creches, to menorahs, or to any other symbol in and [p.224]of itself which is a religious symbol.”
The menorah had been erected by Chabad Lubavitch of Utah, an organization designed to strengthen the Jewish identity in the state. The group was also displaying a Hanukkah menorah on private property without sparking any protest. The Tribune quoted Rabbi Benny Zippel, director of the Chabad Lubavitch, saying, “The issue of the menorah on public property has been litigated throughout the country . . . The Pennsylvania case says the menorah doesn’t violate separation of church and state and is legal.”
Salt Lake City mayor Deedee Corradini promised to keep the menorah in the park as a symbol of cultural, philosophical, and social diversity, despite the threatened lawsuit. She said she had recently seen a variety of religious symbols grouped together on public grounds near the White House in Washington, D.C. The city added a lighted Christmas tree in the same vicinity, and the mingling of religious symbols sufficed. “The outcome contributes an even finer ecumenical spirit to this year’s mid-winter holiday season,” a Salt Lake Tribune editorial praised. The ACLU agreed.
The pre-eminent church/state issue, however, had been “on hold” for a year in the prayer case considered by the Utah Supreme Court. Late in 1993 the court prepared to release its long-awaited decision, which would prove, for the Utah ACLU, a holiday surprise.
As attorney for the Society of Separationists, Brian Barnard had no advance warning of what the court would decide—only that it would release a decision on December 10. Throughout the day Barnard’s telephone rang steadily with calls from reporters, but no decision came until evening.
The decision on the constitutionality of prayer in government meetings was especially crucial given the movement to pass the Religious Liberties Amendment. Would a decision upholding the district court’s ruling that city council prayers were unconstitutional inspire the amendment lobby to even greater efforts? Or would it squelch the impulse once and for all? A decision overturning the lower court would no doubt please those favoring prayer in meetings—but could the high court reasonably allow prayer, given the clear wording in the state constitution?
[p.225] Interestingly, the court’s decision preceded by only five days an Interim Legislative Judiciary Committee meeting on the Religious Liberties Provision. This juxtaposition was not lost on anyone observing the legal course of the prayer issue. Barnard commented later, “It seems clear the court’s intent was to issue an opinion prior to that meeting.”
The task of the Supreme Court, traditionally, lay in examining the legislative history of the law in an attempt to discover the intent and the implications in the larger context of jurisprudence. In this case, however, a legislative history of the article in question virtually did not exist. In his own research, Barnard had found nothing more than a couple of paragraphs indicating discussion—no newspaper accounts, journals, debates, or conferences revealing the intent with which the provision had been penned at the 1895 Constitutional Convention.
The reason lay within the controversy around statehood itself. In the 1880s and early 1890s, prominent LDS leaders in both church and civic affairs had struggled to convince Congress that the Mormon theocracy called the State of Deseret now deserved statehood. Repeatedly non-Mormons living in the Utah territory fueled the controversy around polygamy and religious autocracy in order to keep territorial officials in charge and to counterbalance Mormon power.
Finally, once polygamy was quelled, the statehood proponents had borrowed language from the constitutions of other western states—language that had already been accepted by Congress and would reveal gross prejudice if turned away. The provision in question more than a century later was lifted verbatim from the Washington Constitution, a state admitted six years before Utah.
Given the Utah State Constitution’s unequivocal language, and despite the lack of legislative history, Kendell and Barnard were optimistic as they waited together at the Capitol Building for copies of the high court’s opinion. When it came, Kendell began reading from the top, while Barnard thumbed quickly to the end. Hearing him react, she flipped to page forty-two and read, “The judgment of the district court [which had forbidden prayer] is therefore reversed, and the case is remanded with directions to enter judgment for the City Council.” Barnard and Kendell had just lost a case that neither had expected to lose.
On December 11 the Salt Lake Tribune headlined the front page, [p.226]“City Councils Can Pray On, Rules the Utah Supreme Court.” The article reported that on December 10 the high court had upheld the embattled tradition of opening city council meetings with prayer and had ended a twenty-one-month moratorium. The four-to-one decision had taken one year and fifty-two pages, overturning the March 1992 decision by Third District judge J. Dennis Frederick that council prayers violated the church/state separation clause of the Utah Constitution.
The Supreme Court decision devoted more than twenty pages to dissecting Utah’s theocratic roots, with the majority of justices determining that “upholding an absolute ban of governmental support of religious activity could prohibit a resident from praying even in a public park,” the newspaper explained. On the other hand, wrote Justice Michael D. Zimmerman, “our history convinces us that direct expenditures for religious purposes are not to be permitted lest the old wounds of church-state entanglement be reopened.” The court ruled that the test of legal government support of any religious exercise was that it be “neutral” and “indirect” and available to all religions or secular groups.
Reaction to the decision came quickly, with celebration among those who favored prayer at government meetings. The following day the Tribune quoted the reaction of Provo Republican representative Byron Harward: “The Supreme Court has now put things back to the way they were.”
The lengthy article included a small but surprising agreement between Harward and Kendell. Harward told the newspaper that while he applauded the decision, he feared the justices “bent over backward” so far that the decision might be overturned by a more literal-minded Supreme Court in the future. “Kathryn Kendell agrees that the ruling relies on a ‘torturous analysis’ that has little to do with the state constitution’s language. The ruling renders the promise of church-state separation ‘meaningless,’ she said.”
Since much of the court’s reasoning virtually echoed Kendell’s and Barnard’s arguments before the justices, the conclusion hit both the ACLU and the Society of Separationists with a shock. Zimmerman wrote, “Government is not to prefer religion to nonreligion, but neither should it be hostile to religion. Religious exercise is to be unfettered, and freedom of conscience is to be supreme.”
[p.227]Each attorney analyzed the decision carefully. Said Barnard, “The bulk of this opinion goes through the history of the trials and tribulations of the Mormons,” rather than reviewing the process at the Constitutional Convention. “The justices drew on history, not legislative history, because there is none.”
He explained, “Because the Mormons were persecuted in Illinois, Missouri, then in Utah by the federal government, the court decided this constitutional provision couldn’t mean what it clearly says.” Barnard said he would consider the decision more legitimate had it been based on legislative history.
Explained Barnard, “Because there was a sixty year history of persecution of Mormons, they [the justices] felt the Mormons wanted to support religious activity and didn’t mean what they said [in the Constitution]. The interesting thing about Zimmerman’s opinion, is you can take the same history and come to the opposing opinion-that the mobs had been sanctioned by government officials and, because of that history, the Mormons were smart enough to want to separate church and state.”
While both Barnard and Kendell professed great respect for the court, particularly justices Zimmerman and Christine Durham, their disagreement went deep. Kendell was especially impressed with the dissenting opinion written by Justice I. Daniel Stewart, which contended that the ruling actually constricted religious liberties. The writing of Stewart’s dissenting opinion, she learned, had been responsible for the late hour at which the decision was released.
The high court ruled that prayer in government meetings must be open to all and non-restrictive in its content, so the city set about developing guidelines. “If you go into great detail defining the guidelines,” Barnard wondered, “how can you say there are no restrictions?”
This outcome, if Barnard read the justices correctly, reflected another instance in Mormon history when church leaders said one thing but meant another. Under crushing opposition from the federal government, LDS president Wilford Woodruff had issued the Manifesto of 1890, which denounced the practice of polygamy. Mormons had commonly considered their prophet’s edict an expedient intended for the ears of government officials, and polygamy continued. In 1904 a “Sec-[p.228]ond Manifesto” was announced as a true polygamy ban, subsequently enforced by church discipline of two apostles who continued to take wives.
One prominent prayer proponent understood the distinction between law and intent. Former governor Norm Bangerter explained that the justices had determined, “This is what the Constitution says, but this is what they [its authors] meant.” Bangerter added the justices “should get gold stars on their foreheads for doing the practical thing. The Constitution has room in it for common sense, and this was a simpler way to solve the problem.” He reflected that during his years in the House of Representatives, the duty to open sessions with prayer had simply circulated through the roster of legislators. Anyone who didn’t wish to lead the prayer could ask clergy or someone else to substitute.
Once the Supreme Court ruled prayer legal in government meetings, the Religious Liberties Amendment died a fast and natural death. Barnard did not view this as a coincidence. “We liberals were the victims of judicial activism,” he said of the prayer decision. “Conservatives have been complaining forever about justices rewriting or making up law instead of merely interpreting it. In this case, Justice Zimmerman made up the law, and the liberals were the victims instead of the other way around.”
The provision in the State Constitution contained two contradicting ideas involving religious practice, Barnard said—first, that government shall not establish or support any religion and, second, that government shall not interfere with the free practice of religion. “Rather than acknowledging the tensions between the two, and the fact that hard decisions sometimes are necessary, Zimmerman in his opinion really made the establishing cause take a back seat to the free practice provision.”
Now the intent of the state founders, the desire of the city, and the lenience of the high court had to be translated into policy. On New Year’s Day 1994 the Tribune reported that the victorious Salt Lake City Council intended to test its triumph. However, the ruling’s insistence that government’s friendliness toward prayer must benefit everyone equally was already raising questions. The city set about finding answers.
City council aide Ed Snow compiled a list of congregations and [p.229]potential prayer leaders, soliciting suggestions and even scanning the Yellow Pages, the Tribune reported. While the city attempted to open the process in this way, Barnard considered it a type of screening. He told the newspaper, “You look through the phone books, and you don’t find ‘Polygamists’ listed in the Yellow Pages.” He added, “Santerians aren’t listed. So there is a selection process.”
Snow declined to comment on whether the city would allow a representative of “an uncommon religion,” such as a Wiccan priestess, to open a city council meeting. But the article closed with Barnard’s repeated prediction: “Barnard says the city will eventually have to deal with the reality that all religions, no matter how repugnant to the mainstream, must be made welcome under the [Utah] Supreme Court ruling.”
He told the newspaper, “This opinion will mean that any municipal meetings anywhere in Utah can have prayer. And that may be the downfall of the opinion.” He predicted: “One of these days, somebody’s going to stand up in one of those meetings and pray to almighty Satan. According to the opinion, that person is going to have to be allowed.”
During an earlier appearance on KUTV’s Take 2 program, city attorney Roger Cutler had scoffed at Barnard’s interpretation, adding that exotic offerings would be allowed only if they represented deeply held religious belief.
In relating this, Barnard leaped—lawyer fashion—on Cutler’s statement: now the government would have to judge depth of belief. First, the city council had said people would open meetings with prayer; then the council—and now the high court—had told them how to pray; now the city must judge if the supplicants’ beliefs were sincere.
Barnard readied the test case after being contacted by Tom Snyder, editor of a small newspaper, the Utah Xpress. Together they comprised a prayer that Snyder proposed to offer in the first city council meeting, and they sent it to the council offices. The prayer was addressed to “Mother in Heaven,” embracing a tenured but officially unpopular LDS belief. As the women’s movement had inspired an effort to recognize the concept of female deity, church leaders had insisted that a Heavenly Mother should not be importuned in any prayer, private or public. At least one church membership was lost and others threatened [p.230]in the debate.
Since belief in specifically female deity was not held by other Christian-Judaic religions, the prayer seemed destined to offend most Mormons and most non-Mormons with its salutation, if not its content: “Our Mother in heaven.…We fervently ask that you guide the leaders of Salt Lake City…and Utah, so that they may see the wisdom of separating church and state….”
While Barnard prepared to hold the council’s feet to the fire, the Utah ACLU appealed to their hearts and heads. On January 19 Kate Kendell and Carol Gnade wrote to the council:
We are well aware that the issue of government prayer is deeply felt by individuals on both sides of the issue. We understand that some of you feel strongly that prayer should be a part of your formal meeting. Nevertheless, we request that you consider, as an alternative, the adoption of a moment of silence as a proper way of solemnizing your official meeting. The Ogden City Council recently voted in favor of this approach. Their public statement indicated that they approved a moment of silence, not because of any hostility to religion or prayer, but rather, out of a profound respect for religion and the proper role of government in protecting religion. Moreover, those supporting a moment of silence recognize and celebrate the diversity which makes Utah great and which demonstrates that we do not all worship the same God, nor do we all worship.
Whether this letter or the prospect of prayer by any and all comers tipped the balance, on February 9, 1994, the Tribune reported that the Salt Lake City Council had voted four-to-three against resuming prayer. The feelings of the council members and the public were as divided as the vote. But, as Barnard had predicted (and virtually guaranteed), the government found itself in treacherous political terrain—though no longer a constitutional wilderness—by the need to regulate and judge the appropriateness of individual prayers. The “pro-prayer zealots” could not truly win their cause Barnard summarized. “They want comfort in praying, and [having it] will mean no public prayers.”
A scorekeeper, then, might give the ACLU a win on the school prayer issue and a loss on the question of prayer in public meetings. Yet [p.231]the practical outcome suggested a different kind of victory. Public prayer offered in government meetings in ways fair to everyone had proven unworkable, at least thus far. The reality that “fair prayer” constituted a contradiction in terms became apparent only after the Society of Separationists and the ACLU pressed the issue to a literal impasse.
The 1994 legislature bypassed the Religious Liberties Amendment as the prayer question won in the high court and returned to the city council. No sooner had the body adjourned, however, than it posed another church/state challenge by scheduling a town meeting in the LDS Logan Tabernacle. Immediately Kate Kendell wrote to retiring house speaker Rob Bishop that the affiliate would file a lawsuit if the legislature pursued these arrangements. “It not only sends a message of favoritism for the Mormon faith,” Kendell wrote, but also constituted a violation of the separation of church and state.
Bishop, in speaking with a Tribune reporter, brushed off the conflict as trivial, saying: “It does not rank in my mind with thermonuclear war.” However, he added that the legislative leaders would consider other sites and wished to be “as accommodating as possible.” Still, Bishop said, he did not relish the appearance of giving in to the “bullying action” of the ACLU.
Kendell responded: “We talked to our national office legal experts and they said this kind of issue has never been litigated before because no other legislature has been stupid enough to do something like this.”
Despite Kendell’s threats and Gnade’s attempts to explain, the legislators pursued their original plan. Democratic legislator Kelly Atkinson told Gnade that they would provide a room outside the tabernacle for people who were uncomfortable meeting in the historic Mormon edifice. “For me, this was so symbolic of the nature of the problem here,” Gnade said. She could not understand how the legislators could overlook the implications of holding a town meeting in a church building with a separate space for those who felt excluded. She called LDS church emissaries but raised little sympathy there.
Public speeches by political figures in the Salt Lake Tabernacle, including former President John F. Kennedy, were cited as precedent for the legislative meeting. Gnade was not impressed. “Even the most [p.232]unintelligent person must be able to see the difference between Kennedy coming to speak in the Tabernacle and the business of government going on there.” She was deeply upset by accusations of Mormon-bashing. “They just don’t get it,” she concluded.
After consulting with legal chair Elizabeth Dunning, the affiliate decided not to sue. Separation of church and state was an obvious problem and so was the open meeting law. Yet given the city’s invitation to the legislators and the lack of suitable meeting places, the prospects of successful litigation appeared slim.
Also the LDS church modified its policy of not allowing the distribution of literature on church grounds, and so protestors distributed pamphlets during the meeting without threat of arrest.
The Salt Lake Tribune began its report under the headline: “Unorthodox Meeting at Tabernacle: Leavitt and Lawmakers Go To Church To Hear Citizens, Not Sermons.” Describing the ninety lawmakers inside the tabernacle and the protesters outside it, the newspaper noted “a dozen other residents [who] watched the proceedings via a televised feed at a restaurant across the street.” Gnade told the newspaper she was “willing to rely on legislative good will that this incident will not be repeated.”
However, the article continued, her expectation was contradicted Thursday. “House Speaker Rob Bishop…said legislators will not think twice about holding a meeting in a religious building.” Bishop praised the “Logan Civic Center” as “convenient, free, large enough to accommodate a crowd, and air-conditioned.” The Deseret News gave the meeting a different focus, noting that Cache Valley residents were allowed only thirty minutes for questions after lawmakers spent an hour making political speeches.
Mixed messages persisted when the legislature reconvened in January 1995. Several bills were introduced ensuring a minute of silence in the public schools—a ritual the sponsors said was unrelated to prayer. Carol Gnade thought otherwise. One afternoon on Capitol Hill, she scanned the legislative docket for “Minute of Silence” and found the bill listed farther down—under “Prayer.”
In the summer of 1994 Kate Kendell decided to leave the Utah [p.233]affiliate. Her departure was reported as front-page news in the Tribune, where a color photograph showed her beside an American flag. Kendell accepted a position as head of the legal department for the National Center for Lesbian Rights in San Francisco.
“Blending feistiness, eloquence and legal smarts with a disarming sense of humor,” the Tribune praised, Kendell had played an important role in battles involving reproductive rights, public prayer, and prisoners’ rights. Praised by Gnade and a variety of government officials, Kendell found her departure from the Utah affiliate bittersweet. She told the Tribune: “I find myself walking around with a big lump in my throat…” She added, “As a lifelong resident of Utah, I have always loved living here and I will always have tremendous respect for the community and the state as an institution.” Immediately Gnade began a statewide search for Kendell’s full-time replacement.
Early in 1995 Jensie Anderson, of Holme, Roberts & Owen, became the second staff attorney. A native of Logan, Anderson was educated at the University of Washington and the University of Utah, then completed an acting apprenticeship at the Alley Theatre in Houston, Texas. After living two years in New York City, she attended the University of Utah Law School and interned with the Utah Legal Services’ homeless project and their Social Security Disability Task Force. She told the Tribune she found the work with the homeless “incredibly satisfying,” and she accepted the ACLU post as fulfillment of a lifetime goal.
Carol Gnade’ s years at the helm were an inspiring reflection on the balance between negotiation and education versus media rhetoric and litigation. Given recent frustrations, she now understood Michele Parish’s willingness to bang heads in order to get things done. While negotiation was more pleasant and often appropriate, she concluded, sometimes it went nowhere.
The pace in the affiliate office had always been demanding; but in early 1996 two perennial ACLU issues caught Gnade in the hectic whirl experienced by certain of her predecessors. The first dealt with the ACLU’s national and ongoing concern with prisoners and capital punishment. The second rose from Utah’s continual tensions around lifestyle. Both gained intensity, impetus, and widespread media interest due to the state’s predominant religion and culture.
[p.234]John Albert Taylor faced execution for the 1989 rape and murder of eleven-year-old Charla King of Ogden. He was the first condemned man since Gary Gilmore to choose death by firing squad rather than lethal injection. Every detail of the execution on January 26 drew local media interest; national reporters honed in mainly because of the rarity of the firing squad and its roots in the old Mormon tradition of blood atonement. Once again the ACLU protested the death penalty. Gnade’s involvement, however, mixed memory and emotion with principle.
“When people tell death penalty protesters … [such as] Carol Gnade they just don’t understand how it feels to lose a loved one to murder, they have an unexpected response,” began a January 24 Deseret News article by Amy Donaldson. “‘I do know how it feels,’ said Gnade… Her sister was abducted and killed more than twenty years ago. The killer was never caught.”
Gnade’s opposition to the death penalty had preceded her sister’s murder and remained absolute. As she led the ACLU’s opposition to an execution even Taylor refused to fight, that loss compelled her to do something unusual. She reached out to Sherron King, Charla’s mother. “I wanted her to understand our commitment to human rights,” Gnade told the News. “We’re both mothers, we’re both grandmothers, and we really love our children and want them to live in a world that’s safe. My heart goes out to her.”
The women talked for about an hour.
Gnade drew not only on her personal background but her years in social work. “I feel the system failed these people who kill—it failed them all the way along the line, maybe even at trial,” Gnade said. “Then we kill them.”
She summoned national clout in an attempt to educate the legislative leadership regarding the abolition of the death penalty. Flanked by Nadine Strossen and Dr. William Schultz of Amnesty International, Gnade arranged a meeting with minority house leader Frank Piganelli, senate president Lane Beattie, speaker of the house Mel Brown, and senate minority leader Scott Howell. Before the meeting began, Gnade related, the visitors chatted about Utah’s attractions. An avid skier, Strossen praised the resorts until Carol said, “Gosh, Nadine, you sound a bit like our Chamber of Commerce ads.”
[p.235]After Gnade opened the meeting, Schultz discussed how rare the death penalty is among developed nations, and Strossen brought up constitutional issues and the disparities inherent in the enforcement of the death penalty. In the silence afterward, Gnade asked for questions. The discussion immediately took a religious bent as Howell defended executions and the Bible’s “an eye for an eye” admonition. Schultz and Strossen countered with the New Testament perspective. Then, Gnade related, Brown said, “Well, you know, we as a people believe that death is preferable to life here on earth.”
Schultz shot back, “Oh, then you must be soft on crime if you execute people.”
Brown did not share Gnade’s amusement as he added that his constituents believed the death penalty aided in stopping crime. A crowd of journalists and cameras was waiting when the meeting disbanded, and the civil libertarians expressed hope that the dialogue might continue. The next day when Gnade picked up a newspaper, however, she felt slapped. Brown had dismissed the significance of the meeting, she found, by informing reporters that Strossen had really just come to Utah to ski.
“The whole scene, for those of us working on the abolition [of the death penalty] issue, was a very emotional time,” Gnade said. “We really believed we could change a few minds, that we needed to try, that this was our work. To have them minimize that was really a shock.” The sense of sadness and futility permeated her days. “You go to bed at night with it, and hope you wake up in the morning with a renewed spirit.” She drew comfort from the memorial service following the execution and a bouquet of flowers that arrived with this note: “A beautiful thing in a desolate place is all the more appreciated.”
As with Gnade’s earlier meeting with LDS church officials and Michele Parish, the significance of the discussion between Utah’s legislative leadership and prominent civil libertarians may have been not what was said, but that it took place at all. In Gnade’s mind, however, the implacable force of the state represented by the firing squad was giddily underscored by an illegal and irrational meeting in the Senate a few days later.
On January 30 the Utah Senate closed a bi-partisan caucus billed [p.236]as a discussion of a state education fund. Reportedly those present included about twenty senators, Cecelia Foxley, state commissioner of higher education, Scott Bean, state superintendent of public education, and attorneys from the governor’s and attorney general’s offices. No vote was taken to close the meeting nor were minutes kept, though both were required by Utah’s Open Meeting Act. Behind the closed doors, senators Howard Stephenson of Draper and Charles Stewart of Provo leveled charges that public schools were promoting homosexuality and undermining family values.
“Utah Senators Hold Secret Anti-Gay Meet,” the Tribune reported. Tony Semerad wrote that Stephenson had “produced a box of children’s picture books, including one titled, Heather Has Two Mommies, about a lesbian couple and their daughter. He complained the books are in circulation in Utah elementary grades—an assertion a leading school-text expert said was unlikely.” According to several sources at the meeting, the article continued, Stephenson had also claimed teachers were “instructing students to have anal intercourse.”
Some senators present derided the bizarre content of the meeting, and senate president Lane Beattie initially apologized for neglecting to follow the law. Nevertheless powerful people quickly joined ranks regarding the bedrock issue. The meeting had been arranged after ten students petitioned to use a classroom at East High School for a gay and lesbian support group.
“The purpose of the club would be to increase awareness about homosexuality in high schools, to decrease homophobia, and to help gay, lesbian, and bisexual students feel safe and welcome in their school environment,” the students wrote. They did not request meeting announcements or advertising. “We feel doing so would attract unwanted attention. We are extremely concerned for the safety and well-being of our members.”
Public attention, however, was immediate and glaring once word leaked of the senate’s secret meeting. “I’d hoped all along that this would be quiet and anonymous,” seventeen-year-old founder Kelli Peterson told the Private Eye Weekly. “Then somebody had to go ask Gayle Ruzicka what she thinks. I thought to myself, ‘Oh God, why now?’”
[p.237]Immediately, the ACLU demanded that the senate provide a full list of meeting participants and a record of its content, threatening a lawsuit if they were not produced. Beattie told the media no minutes nor votes had been taken. He now defended the meeting based on a law allowing state officials to meet privately with attorneys if litigation was imminent. The ACLU then demanded that another meeting be held and the same issues discussed openly, but to no avail. On February 15 the Utah ACLU filed suit against the senate asking the Third Judicial District Court to declare the body in violation of the law and issue an injunction prohibiting further secret meetings.
Meanwhile, it became clear that the banning of gay clubs in high schools was prohibited by a federal equal access law, which had been sponsored by Senator Orrin Hatch, among others, to protect Bible study groups. No club could be banned if any were allowed to meet. Now the debate turned to which clubs might vanish in order to prohibit the Gay and Lesbian Club at East High and a Gay and Straight Alliance formed at West High by Kelli’ s younger sister, fifteen-year-old Holly Peterson.
Governor Leavitt, whose son was student body president at East High, declared the equal access law an inappropriate extension of federal power. “A decision should be made at the local community level to reflect that community’s values and priorities.” By February 10, both Leavitt and Hatch insisted that schools ought to ban gay clubs and then battle the federal law in court. Legislator Stewart had another idea—why didn’t the state simply give up $100 million in federal aid in order to discriminate between clubs?
In a sidebar to this report, the Tribune quoted Holly Peterson, who said she had watched two homosexual friends drop out of school and others become deeply depressed. “It’s not about sex. Our club is more about stopping the suicide and the drug use and the dropping out of school,” she told Associated Press reporter Kristin Moulton. “It’s more about leading a safe and healthy lifestyle than a destructive one.”
Cartoonist Pat Bagley pictured a gay club meeting for the Tribune with a teacher snoozing in the front of an almost empty classroom. Before an audience of one, the club leader volunteered for all assignments, ending with: “Anyway, our activities chairman (me) says our next club activity will be to stop all serious business in the legislature [p.238]and give our elected officials hissy fits.”
People in power weren’t laughing, and their responses propelled Utah’s controversy into the national spotlight. With a four-to-three vote, the Salt Lake City school board banned all extracurricular clubs beginning in the fall of 1996. Students quickly petitioned the board of education asking them to reconsider their decision. Meanwhile, senators introduced a bill to prevent teachers from “promoting illegal activities” either at school or in their private lives. The body split along party lines with the more numerous Republicans supporting the bill.
“In one of the 1996 Legislature’s defining debates, Republicans and Democrats clashed mightily Thursday over a bill sparked by formation of a gay and lesbian club at a Salt Lake City high school,” reported Tony Semerad on the Tribune’s front page on February 23. “Senators advanced Senate Bill 246 by an 18-8 vote after a 75-minute exchange that ranged from evocations of the U.S. Constitution and tales of teen suicide to quotations from the Nuremburg trials. Only one Democrat…broke party ranks in the final roll call.”
“The language is so vague that all it does is make teachers paranoid,” Gnade said, “and chill their First Amendment rights.” The evening after the bill advanced in the senate, the small ACLU office swarmed with students using the telephones to rally support. The next day hundreds of high school students bolted class to protest the actions of the school board and the senate. Some students favored allowing gay clubs and others resented the removal of their own groups, whose emphases ranged from chess to ethnic culture to Frisbees. The East High principal met students on the lawn, told them he agreed with their cause, and asked them to return to class. Some did. Others headed for the Capitol. As West High students formed a caravan, one fourteen-year-old girl—protesting the end of her Polynesian club—fell beneath the wheels of a car. She underwent surgery and recovered from her injuries.
Immediately, the Eagle Forum charged that “outside agitators” such as the ACLU were using the students politically. “We certainly didn’t encourage them to have the rally,” Gnade said. “They know the penalty for civil disobedience, and we’re not encouraging that. But we are letting them know what their rights are.” Gnade continued to lend the youngsters practical, behind-the-[p.239]scenes help. For instance, they were refused a permit for another rally at the Capitol. The ACLU had been through a similar skirmish, so Gnade called Brian Barnard and asked him to walk a student through the procedure. Gnade arranged to have an adequate sound system donated for the rally. Concerned for the students’ safety, she recruited legal observers from the University of Utah and spoke with Salt Lake City police officers. “We’re trying our best to make sure we support them, but letting them make the decisions.”
Meanwhile, teachers organized the Utah chapter of the Gay, Lesbian & Straight Teachers’ Alliance, which they announced at a rally. Reported the Tribune: “Skyline High School teacher Clayton K. Vetter enjoys debating so much that Tuesday he placed himself in the middle of Utah’s fiery discourse on morality, human rights, and homosexuality.” Coach for an award-winning program, Vetter announced his homosexual orientation “to a throng of reporters, students, and citizens” in the Capitol. “‘To not stand up now, when there are so many misconceptions and questions concerning gay issues, would go against everything I have tried to teach,’ Vetter said. ‘This is why I feel I have to come forward. There is too much hope in the world not to come forward. I owe it to my profession and to my students.’”
Both the ACLU and the National Education Association considered the senate bill—which passed both houses—prime for a First Amendment lawsuit. So did the governor, who vetoed the bill, suggesting that legislators write it more narrowly for a special session.
Meanwhile, Gnade heard that the School Board Association was meeting in St. George; she notified the media, which quickly responded. She also called ACLU supporter Clay Huntsman in Dixie and armed him with a legal brief leaked from the offices of Kirton, McConkie & Poelman, a prominent law firm which represented the LDS church. The document described how schools might circumvent the Equal Access Act without paying $2 million in attorney fees, Gnade said. Huntsman soon found he wasn’t the only person distributing the brief, for Brinton Burbidge, representing the law firm, handed out copies, as well. The law firm appeared interested in finding a school district willing to go to court, Gnade said.
Burbidge was bypassed, however, when Senator Hatch and Gover- [p.240]nor Leavitt enlisted Dan Berman, David Jordan, and Matt Hilton (the last associated with the archconservative Rutherford Institute) to draft a bill for the special session and defend it pro bono in the event of a lawsuit. “God knows I hate to say it, but they were very smart in the way they crafted it,” Gnade said, for it seemed constitutional on its face.
The bill banned sex clubs, clubs promoting illegal activities, and hate clubs. A gay and lesbian support group theoretically could meet in a high school. However, if the high school refused but allowed other extracurricular clubs, the ACLU could sue under the Equal Access Act. At that point the legislative intent would be clear from the material submitted with the bill and the day spent on speeches consisting of “homophobia, myths, and bad information from radical psychologists and therapists who said homosexuality could be changed with a lot of therapy,” Gnade said. Schoolteachers in the gay-straight alliance, who reserved a room at the Capitol to meet with legislators, were visited by only six lawmakers, she said. Some teachers, however, participated in talk shows and media coverage nationwide.
The bill overlooked the fact that no sex clubs, clubs promoting illegal activity, or hate clubs had met in high schools before the controversy exploded. In trying twice to eliminate the gay and lesbian clubs but spare others, the legislature had fired a shotgun. Now Utah’s school districts would decide which clubs and activities the pellets hit and which they missed. Then the ACLU would decide how best to return fire. In the Salt Lake City District, however, the school board appeared to comply with the Equal Access Act by banning extracurricular clubs altogether, including ethnic, chess, political, and scholarship clubs, along with gay and lesbian clubs. Athletic and pep clubs escaped the ban. The ACLU sued the senate for holding an illegal meeting and pursued the possibility of suing the state regarding the new school clubs law, or the Salt Lake City School District, or both.
Interestingly, Jim Joy, a former director of the Utah ACLU, was championing a similar equal access question in Colorado. There Louis Farrakhan’s Million Men March had applied to rent space in a high school for a youth group and been refused although the school rented rooms to other groups. The same issue could easily arise in Utah, Gnade said, if the Young Republicans, for instance, were allowed to sponsor [p.241]high school groups but the Gay and Lesbian Alliance at the University of Utah were turned down.
In talking with an L.A. Times reporter, Gnade made one offhand remark that would be picked up nationwide and used as the Salt Lake Tribune’s quote of the week. After explaining the senate meeting, following Taylor’s execution, she said, “I will look back at this as the most shameful time in Utah’s history. But then, I said that last week.”
By 1996 the Utah ACLU differed markedly from the ad hoc group that had formed forty years earlier. For instance, when Gnade heard that a school district in the Utah portion of Wendover was 71 percent Hispanic and experiencing discrimination, she raised the matter in an immigration group that met monthly. The group included police officers, an immigration attorney, and representatives from La Familia and the Catholic Diocese, who welcomed the ACLU’s interest in the border town, Gnade said. The strength and versatility the group offered presented a striking contrast to the affiliate’s early efforts to combat racial and ethnic discrimination through educating civic officials one by one.
In 1994 regional director Dorothy Davidson noted the strength of most western affiliates. Her own regional office could probably close its doors and not be missed, she said. Eight of the eleven state affiliates in the region were staffed and strong. In contrast, North and South Dakota and Wyoming struggled with large distances and low populations. Davidson wondered whether the national organization shouldn’t now concentrate its resources on organizing within those few states.
Davidson emphasized that from the earliest years on, those leading and participating in the Utah ACLU had built the organization through unique contributions. Many Utahns served quietly on the board of directors, as fundraisers, or as cooperating attorneys, often switching positions as the need arose. The issues, lawsuits, personalities, and politics changed with time, but the essential struggle continued as the affiliate grew in membership and muscle.
In forty years the Utah ACLU transformed from a network of volunteers to a stable, vigorous agency. Some of its founders had remained visible in public life. In March 1993 Adam (Mickey) Duncan [p.242]received recognition from the National Association for Ethnic Studies. Spencer L. Kimball returned to Utah to accept a professorship at the University of Utah Law School. Stephen Smoot worked in the U.S. Department of Commerce, and Steven Cook still practiced law. Jim Joy, who had left Utah to head the Colorado affiliate, remained in that position, appearing in Utah news reports regarding anti-gay laws that had been passed in Colorado and protested by the ACLU. Shirley Pedler left the Louisiana affiliate in 1993 and took over the New Mexico affiliate in Albuquerque, while Robyn Blumner continued to lead the Florida affiliate.
Michele Parish worked with the state affiliates of the National Women’s Political Caucus in Washington, D.C., and astonished Utahns once again by marrying a Mormon—Milton Bisseger, an aide to Utah Democratic congressman Bill Orton. The marriage, however, would be short-lived. In organizing state affiliates for the caucus, Parish drew upon her Utah ACLU experience. “I’m not just talking to you from an ivory tower,” she would say. “I know what it’s like to be under fire in the states, and I know you can do it.” She rallied them with, “If you can raise money in Utah for liberal causes, you can raise it anywhere.” In March 1994 Parish returned to Utah to speak at the awards ceremony of the Utah Women’s Political Caucus.
Remembering her years as executive director of the Utah affiliate, Parish said, “It was a great time of my life. I felt very alive, in the middle of the action, making things happen. What I’m doing now is very different. It took a while to get used to not being in the newspaper.… My primary role is to empower other people.” As executive director of the Utah ACLU, she reminisced, “I was just doing what looked like the right thing to do. If I’d known what I was doing, I don’t think I could have done it.”
As a matter of record, the major lawsuits brought by the Utah ACLU tended to combine victories and losses. When the affiliate objected to the LDS church requiring employees in church-owned businesses to maintain temple recommends, it won in state courts and lost in the U.S. Supreme Court. Following an ACLU lawsuit, LDS seminaries had been allowed to teach religion during released time, but the classes no longer counted for high school credit. The affiliate had [p.243]forced Brigham Young University to instruct its cadre of off-campus landlords to cease enforcing university standards for non-students; nevertheless, the landlords’ policy of segregation in order to promote the BYU lifestyle was upheld in court. School prayer was found unconstitutional by the U.S. Supreme Court, while prayer in government meetings was deemed constitutional by the Utah Supreme Court—and then found unworkable.
The Utah State Penitentiary was allowed to continue double-bunking some cells, but only after it remodeled to improve prison conditions overall. Medical and mental health care procedures and facilities transformed at the prison as a direct result of the hard-fought ACLU litigation.
Abortion remained legal in Utah, thanks in part to the ACLU efforts, even as the state tightened regulations. Doctors treating infertility and difficult pregnancies were freed from the threat of criminal prosecution.
“I enjoy this kind of practice,” said Brian Barnard, the affiliate’s best known ally. “I enjoy the idea that people have rights and can assert them against government entities. If there aren’t attorneys around to do something about it, the Bill of Rights doesn’t mean anything.”
The history of the Utah ACLU was unendingly dynamic, founded on a relationship with power rather than in polar opposition to it. Given the state’s history and homogeneous population, the will of the majority was magnified as seeming both appropriate and preferable. Thus the rights reserved to individuals in the Bill of Rights gained a unique poignancy when countering the power amassed and sometimes intermingled by the institutions of church and state.
While ACLU founder Roger Baldwin likely did not envision a Utah setting when he predicted that civil rights battles would not stay won, the state’s own brand of conflicts proved him accurate. Not only did the same issues resurrect, but they were joined by new controversies such as the questions surrounding homosexuality.
The intent to prevail marked all the battles waged in Utah by and with the ACLU. Sometimes the artillery fired across ideological lines produced a metaphorical body count among those involved. And yet the wins and the losses affected both sides for better and worse, whether they took place in the courtroom, the legislature, the media, or through [p.244]private correspondence. Although the battles continued, no outside enemy truly existed.
The ACLU in Utah had committed itself to the cause of preserving Civil liberties—everyone’s constitutional rights. Therefore it volleyed and was pelted by only friendly fire.