Friendly Fire
by Linda Sillitoe

The Long View

[p.1] Before first light Salt Lake Tribune reporter Christopher Smart drove down Parley’s Canyon toward a dirty fleece of winter smog. Once in the city he would breathe the grayish air like everyone else without thinking much about it, too focused on the morning’s interview.

For some time he had seemed to breathe the story itself, one he knew—when he took the long view—was the story of his career. The American Civil Liberties Union was battling the Utah Department of Corrections over medical conditions, overcrowding, interception of legal mail, and inmates’ access to religion. Over the last couple of years, Smart had blasted article after article onto the Tribune’s front page.

As he drove to work, copies of the Tribune were slapping on to subscribers’ porches, scooting down driveways, banging storm doors like wake-up calls. This morning’s newspaper reported a search for a new corrections chief.

Pursuing the prison story implied criticizing a state department head, Gary DeLand, who was strong-willed, articulate, and backed by the governor. It meant questioning a state department that, a few years back, was considered an unassailable bulwark. It meant relying on sources such as Michele Parish, executive director of the Utah-ACLU, who not only led out on the prison lawsuits but was embroiled in other controversies as well.

In conservative Utah, a battle between the man who locked up bad guys and the woman who defended their rights didn’t require a poll to [p.2]determine which way the public leaned. By the time an editor had growled, Stop quoting Parish, Smart had developed a network of sources in the prison—inmates, guards, staff. He had good sources among them, but most talked without attribution. Only ACLU-types were likely to speak forthrightly on-the-record when it came to prisoners’ rights.

Smart could never write the texture of the scenes that filled his head. He never described to readers how DeLand and his aides marched into the Tribune office to protest its coverage. The corrections men had seemed in uniform, Smart noted as he joined the meeting. They all wore sport coats, golf shirts, jeans, and cowboy boots, and DeLand had eased his jacket back as he sat down to display his hip pistol.

Nor did Smart describe Parish in her downtown Boston Building office that was layered everywhere with paper—lawsuits, posters, correspondence, memorabilia. Soft-voiced but acerbic, Parish was as hard-hitting in print as DeLand. Readers didn’t see her bustle through the office in stocking feet with runs climbing the backs of her legs, tossing wisecracks over her shoulder as she photocopied documents.

He hadn’t told readers how he angered Governor Norm Bangerter at a press conference, or how the governor had called the Tribune, demanded an apology, and gotten it. Smart just quoted these news makers, thrust for parry.

Straight reporting offered no way to describe the tension that hummed over telephone wires between the newspaper and the prison when he talked to sources at the Point of the Mountain. Some days it was more than tension, and the outright fear boosted his own adrenalin, coursing through his hands to the keyboard, rattling out the lead for the next article.

Of course the ACLU was known for championing unpopular causes. In the same edition with one of Smart’s prison stories, Parish was quoted in other articles, on topics just as sensitive. Turn to the editorial page, and her caricature would appear in the morning’s cartoon. The framed cartoons hung on her office wall like trophies.

Parish’s willingness to anger local authorities to get things done was unusual and outrageous in Utah, where problem-solvers paid deference to traditional authority—church and state. Even the media chided itself for being too docile, willing to let newsmakers and their public relations [p.3]people define the news. Yet the pattern was ingrained, and controversy tended to cost all who became involved.

In early 1991 that held true for DeLand as Smart reported his departure. A year earlier the media had covered the firing of DeLand’s inspector general. Conditions were changing at the penitentiary. What Smart couldn’t know was that the media would soon report the departure of others now at the heart of the fray. Michele Parish would pack up her activism and leave Utah; Governor Bangerter would decide not to run for a third term; and, well before the ACLU and Corrections resolved their differences in court, prison administrators would ensure that Christopher Smart would no longer work as an investigative reporter at the Tribune.

Controversy and the American Civil Liberties Union lived as conjoined twins, not only in Utah but elsewhere. Born and bred in New York and infused with eastern liberalism, the ACLU and the conservative Utah mindset stood at opposite poles. “The ACLU is a four-letter word in Utah,” the affiliate’s first staff lawyer would observe. Never had that been more evident in the public arena than early in 1991.

 The Utah legislature had recently passed the Criminal Abortion Law, which posed the strongest threat yet from conservative states to legal abortion. Bangerter said the state would spend a million dollars to defend the bill, if necessary; and the ACLU would accommodate with a lawsuit.

In addition, northern Utah’s editorial pages were filling with letters about prayers in public schools. This, like abortion, was a national issue with a local twist. The Rhode Island ACLU had filed suit on a similar case, and now controversy raged in Utah while litigants kept an eye on the United States Supreme Court.

Prisons, abortion, and public prayer were issues the ACLU took on nationwide. But in Utah, with a population that remained nearly 70 Percent Mormon—members of the Church of Jesus Christ of Latter-day Saints—almost every issue seemed colored faintly or vividly by religion. The abortion statute, for instance, closely resembled the Mormon church’s policy on abortion and was passed by an overwhelmingly white, male, Mormon legislature who, as lay clergy, led neighborhood [p.4]congregations. Prayers in public schools were almost always LDS prayers, offered by students taught from childhood to pray spontaneously alone and in groups. And within a population whose lives centered around religion, who lived a rigid health and moral code, and who believed the Kingdom of God must be established by the righteous on earth as well as in heaven, prisoners, who had committed not just sins but crimes, prompted little sympathy.

Despite its peculiarities, Utah’s majority politics at the onset of the 1990s fit securely into the nation’s mainstream as U.S. presidential candidate George Bush called Democratic candidate Michael Dukakis a “card-carrying member of the ACLU.” Thus the ACLU had become a pejorative buzzword among conservatives nationwide and certainly in Utah. Bush’s administration, like Ronald Reagan’s before it, legitimized the outrage Utahns felt toward an organization that helped prisoners, litigated for reproductive rights, and wanted prayer out of schools.

 As the membership and resources of the national ACLU grew during the Reagan-Bush years, so did those of the Utah affiliate. Americans were beginning to perceive the enemies of one civil liberty or another as residing in the White House and ensconced in Congress. Locally, Parish had a theory that donations came in direct proportion to the number of minutes the affiliate captured on news broadcasts. People listened to sound bites and then opened their wallets.

Controversy had made the ACLU the power it had become, but controversy had nearly broken it more than once. As Samuel Walker would write in his book, In Defense of American Liberties: “The history of the ACLU is the story of America in this century.” Walker called it “one of the most unpopular organizations in the country.”

In Utah, the briefer history of the ACLU similarly capsulized the state’s history, not in years as much as in highlighting the culture’s torments, triumphs, and trials of conscience. Principles lay at the core of each conflict, deeply rooted, where social and individual conscience formed. Such principles found expression in both secular and religious ways, whether over the pulpit, in the legislature, or at ACLU board meetings.

“Critics often charge the ACLU with arrogance,” Walker wrote. “Who, they ask, gave it license to say what a civil liberty is? Who gave [p.5]it authority to impose its will on the rest of the country?” In fact, the ACLU holds no special license. “The ACLU,” Walker explained, “has no greater authority than any other advocacy group has had. It has argued its point of view in the courts and the arena of public opinion along with every other group.…”

But the ACLU reached into the heart of crucial issues including pornography, separation of church and state, and the rights of lawbreakers. Repeatedly, Walker asserted, the ACLU asked itself and the nation, “What is the nature of freedom in a democratic society? Where should the lines be drawn in determining the boundaries of individual rights?”

Founded in New York in 1920 by Roger Baldwin, the ACLU announced itself as the first public interest law firm dedicated to the Bill of Rights: to preserving freedom of speech, freedom of the press, freedom of religion, freedom from unreasonable search and seizure, freedom of assembly, and eventually to preserving implied freedoms such as privacy.

Preceded by the National Civil Liberties Bureau that Baldwin and Crystal Eastman organized, the ACLU drew its founders from three main groups—social workers such as Baldwin and Eastman; Protestant clergy, including socialist leader Norman Thomas; and conservative lawyers who idealized the Constitution.

The concern in the early twentieth century coalesced even as the nation succumbed to the fever of World War I. To pacifists such as Baldwin and Thomas, the government’s treatment of dissidents and conscientious objectors graphically illustrated the practical absence of civil liberties in the United States. Not only were the times inspiring charismatic leaders like Baldwin and organizations like the ACLU, they simultaneously propelled young J. Edgar Hoover into power, largely to quash the dissidents, immigrants, and workers the ACLU would learn to defend.

Essentially, free speech did not exist before World War I, for it was supported neither by legal precedent nor by public tolerance. “The glittering phrases of the First Amendment were an empty promise to the labor movement, immigrants, unorthodox religious sects, and political radicals,” Walker wrote. In order to cope, dissident groups simply relocated within the vast geographic area claimed by the United [p.6]States. In a nation that stretched from sea to sea, people could live apart rather than learn to live together.

Mormons, for instance, had traveled westward in increasing numbers as their communities struck discord with their neighbors. From the church’s inception in New York state, the Saints had built and then abandoned one city after another, including the second-largest city in Illinois, then fled to Mexican territory and claimed it as their Zion. Unlike their sojourns in various states during the westward exodus, Mormons found on the western side of the Rocky Mountains time to grow and prosper before their enemies caught up with them. With their collective memory stained by battering, rape, and bloodshed, their need for a stronghold was as intense as their determination to provide one.

Other groups, differing from the core of white Anglo-Saxon Protestants by race, ethnicity, class, or belief, had clustered as well. When the ACLU took root in 1920, it did so in a nation that seldom questioned discrimination on the basis of race, gender, or social position. Women were just receiving the vote after a bitter struggle, and racial segregation remained the law and custom of the land. The Supreme Court had never upheld a free speech claim under the First Amendment. The fledgling ACLU immediately fought for the right of the Industrial Workers of the World and other trade unions simply to hold meetings. Baldwin would speak prophetic and often-repeated words when he said, “No fight for civil liberties ever stays won.”

The very controversy that made the fledgling ACLU known throughout the nation—the Scopes “monkey trial” and organic evolution in public school curricula—ended inconclusively but popularized the notion of variant ideas and free speech. In the decades that followed, the question of Bible study in public schools returned perennially. Walker wrote, “In the 1980s, fundamentalists pushed a new theory of ‘scientific creationism,’ and the Supreme Court again sustained the ACLU in 1987 by declaring unconstitutional a Louisiana law requiring its teaching.” The day that decision came down, a journalist asked ACLU executive director Ira Glasser “how long the ACLU had been fighting the case. ‘Sixty-two years,’ he replied.’’’

Baldwin was dead right, said law professor Nadine Strossen in 1994. As the first woman president of the American Civil Liberties Union, [p.7]Strossen quoted Baldwin in an interview with The Progressive. When asked whether the Bill of Rights could be passed in the nation’s current climate. Strossen replied. “Every now and then someone does an opinion poll in which people are told what the Bill of Rights is. The pollees always seem to say. ‘Let’s get rid of  that.’”

Such public sentiment prompted authors Ellen Alderman and Caroline Kennedy to write the book In Our Defense. They noted that a 1987 newspaper poll showed that 59 percent of Americans could not identify the Bill of Rights. In introducing fundamental principles of the Bill of Rights, the authors “decided to begin with the people, traveling the country to meet with them. Because the law evolves in tiny increments of Plaintiff v. Defendant, we decided to tell the stories of their cases.”

The cases were chosen for the “majestic principles of liberty and justice…played out in the lives of ordinary Americans, some heroic and some malevolent.” The authors quoted a Supreme Court justice who wrote: “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.”

The authors concluded, “…as the Bill of Rights enters its third century, it is only by fighting for those rights, win or lose, that they will continue.”

Defending “not very nice people” was, in fact, an ACLU hallmark. The ACLU prided itself on championing the unpopular—prisoners, minorities, troublemakers, misfits who did not flow with the mainstream. In preserving itself and its institutions, society offered such people its indifference at best, and its force of will at worst. The Bill of Rights had been written, after all, to abridge the power of the majority.

In fact, as Alderman and Kennedy explained, it was not until after the Thirteenth, Fourteenth, and Fifteenth amendments were enacted following the Civil War that the U.S. Supreme Court even began to protect citizens against the states, using the Fourteenth Amendment as a doorway. Judicial debate then commenced over which and how many guarantees of the Bill of Rights applied federally and should be incorporated against the states. The debate continued for decades. The incorporation of most rights during the 1960s prompted an increase in [p.8]constitutional litigation and propelled what the ACLU would call the “rights revolution.” That social unrest would strike—in Americans who dwelled comfortably in the majority—a chord, a sense of “their” society losing control.

The goal of preserving civil liberties would frequently become contradictory, as the ACLU veered from libertarian stances to liberal positions, then back again. Interpreting complex questions often raised internal debate. Would the ACLU support the vanguard freedom of the press or would it resist pornography as part of its Women’s Rights Project? Should the ACLU defend a woman’s or a couple’s implied right to reproductive privacy or defend the unwritten rights of the unborn?

Such internal conflict rarely impeded the organization’s health, however, for the ACLU and its people thrived on discussion. Twice every year the executive directors of the ACLU convened to discuss budgets, fund raising, current politics, and issues. At every gathering these affiliate directors proved themselves politically savvy and suspicious of authority, as they refused to rubber stamp any agenda without thorough consideration. Even behind closed doors the ACLU tended to model the diversity and freedom of expression it advocated within the public arena.

The national ACLU celebrated thirty anniversaries before it was conceived in Utah. True, women voted and schools and parks were integrated, but the roles for both women and racial minorities remained firmly circumscribed in many ways. In addition, workers’ rights were comparatively nonexistent, and resistance to unions ran high. Most pervasively, Utah enjoyed a racial and religious homogeneity that automatically magnified the will of the majority as appropriate and preferable.

In Utah, church, family, and government formed a trusted triad; generally the same men led and shaped all three. Industry and loyalty to those in authority carried the promise of prosperity and peace. This seemed the just blessing of the descendants of Mormon settlers, many of whom had eked out a hardscrabble existence; prosperity also felt fine in a state hit particularly hard by the Great Depression. Not surprisingly, the seeds of civil libertarianism sprouting elsewhere in the nation [p.9]between 1920 and 1950 fell on crusty soil near the Great Salt Lake. For decades after the Utah affiliate took root, it would be viewed by pioneer stalwarts as sprouting obnoxious weeds to infest the grain of an orderly society.

An orderly society had been shaped in Utah territory as an element of survival, for colonizer Brigham Young’s concept had depended upon a fierce sense of loyalty that allowed people transplanted from greener climes to impose their vision on the fertile but arid valleys. Below that practicality lay an even deeper vein of unity-testimony that the leader spoke God’s will, not his own, and gave God’s counsel.

Historian John S. McCormick described the Mormon vision of a western utopia in Salt Lake City: The Gathering Place: “A religious impulse would infuse every activity, so that it would be difficult or impossible to draw a line between the religious and secular aspects of life.” Church leaders would extend their edicts into political, social, and cultural realms as well as the religious. “For Mormons, only a society that God designed and closely directed could endure and provide peace and justice on the earth.”

The vision of nineteenth-century Mormons depended on a strong central organization backed by an obedient people. Furthermore, in capitalist America this “would be a cooperative, rather than a competitive society. The emphasis would be on group consciousness and activity, not on the individual,” McCormick wrote.

“Kingdom,” for Mormons, meant God’s civil authority on earth, a concept at once spiritual and literal. The binding words of a prophet, “Thus saith the Lord,” were not spoken often in pioneer times and rarely in the corporate church of the late twentieth century. Yet the implication of inspired authority in both eras sped along an intricate priesthood network from the church hierarchy to the neighborhood bishop and permeated every LDS home, ideally headed by a father holding the priesthood. Thus “the gospel” interfaced with every aspect and level of living.

Most importantly, perhaps, territorial Utah’s temples, cities, and farms symbolized an enormous improbability—the triumph of a people and a religion that very nearly had been quashed by the majority. After all, no ACLU had existed to protect beleaguered nineteenth-century [p.10]Mormons driven from state to state. No ACLU had marched to free their founder and first prophet, Joseph Smith, from the Carthage Jail where he was killed by a mob. Once the Mormons founded their community beyond the Rockies, no ACLU defended polygamy to the federal government as an aspect of freedom of religion. When the United States confiscated Mormon property, canceled voting rights, and jailed citizens who obeyed all laws except monogamy, the cries for justice under the Constitution went unanswered. In defiance, on one July 4 Mormons flew the American flag at half mast.

Before Utah became a state, it was forced into compliance with the majority values of the country—capitalism, monogamy, and representative government, though belief in communalism, polygamy, and inspired leadership burrowed deep but did not die. Not surprisingly, a century later the cultural memory of strife and persecution found expression more in solidarity with like- minded people, in civic order, and in prosperity than in dissonance. The community sense of having triumphed over an ungodly world rarely bent toward those currently considered radical.

In fact, by the time Baldwin founded the ACLU, Utahns were determinedly mainstream American. In 1925, as the ACLU defended John T. Scopes, Utahns, like many other Americans, opened public meetings and classrooms with prayer. As the ACLU litigated for workers’ rights, Utah remained an anti-union state where labor uprisings were squelched and labor activist Joe Hill was executed for murder. As the ACLU protested the internment of Japanese-Americans during World War II, Utah hosted a prison camp in the desert.

After the wars, Utah entered a slow but persistent curve toward Republicanism and dependence on military industry. The ACLU seemed distant, offensively eastern, and relatively small. Its local legal department of one attorney was more likely to file an amicus curiae (friend-of-the-court) brief than undertake litigation. Utahns might read about the case in the newspapers. But as the 1960s approached and television-borne social issues seized the heart of American society, organizations devoted to civil liberties swelled as never before, even as the LDS church and the State of Utah each assumed a strict stance favoring the status quo.

[p.11]As ACLU influence was channeled into the civil rights movement, Little Rock, Memphis, and Birmingham seemed distant. Minority communities in Utah were small and thus far timid, and the Utah legislature resisted civil rights measures well into the 1970s. As controversies tended to, the issue of racial equality swarmed around the powerful yet vulnerable Mormon church which withheld its lay priesthood from African-American men. The church drew fire, ranging from criticism of LDS presidential candidate George Romney to protests and boycotts of sporting events involving church-owned Brigham Young University.

The ACLU opposed the Vietnam war, but Utah’s economy depended on military industry. Often semi-annual LDS general conferences urged Mormons to support the war, though many young people avoided service by filling church missions or seeking educational or marital deferments. As the ACLU called for the impeachment of President Richard Nixon, Utah offered him a small but steady stronghold. As the Christian right absorbed the backlash of the liberal and libertarian tendencies of the “rights revolution,” Utah offered itself in the late 1970s, 1980s, and early 1990s as the hallmark of “family values.”

Nevertheless, despite these general trends, the changes that swept the U.S. after World War II reached Utah, too, including increased employment among women and a surge in higher education. For the first time the LDS church was led by a college-educated prophet, David O. McKay, who brought other educators into church service and encouraged education in both church and secular formats. The defended border between religion and academia faded, and by the 1960s knowledge in both arenas seemed possible and desirable. And so, as the nation emerged from the Cold War to wrestle with its conscience and its young, the blowing seeds of libertarianism caught hold in the minds of a few in Utah and began to grow.

History would show that the polarity between the power structure and the ACLU’s insistence on civil liberties ultimately forged the two into a synergistic relationship both nationally and in Utah. The resistance the ACLU encountered in its crusades lent energy and resources to the organization as it unfurled its banner across the public consciousness. Conversely, the outrageous efforts of the ACLU in opposing mainstream opinion bolstered the confidence of the conservative ma-[p.12]jority. While many—perhaps even most—conflicts were resolved without litigation, winning in court would underwrite the meager coffers of the fledgling Utah affiliate and guarantee its challenges to the establishment in the future. Taxpayers often paid not only for the armistice but for the battle.

In any war involving the ACLU, the gains and losses have included barrages of “friendly fire,” an oxymoron coined by the military for casualties inflicted by comrades-in-arms rather than foreign troops. The relationship—not the intent or the damage—gave rise to the term, for those sending and those receiving fire were undeniably linked.

Linked too are the Utah ACLU and the community in which it thrives and wars. Thus the questions of who won, who lost, and how civil liberties fared in the fray inevitably require interpretation.