by Linda Sillitoe
[p.169]The scene shift, as 1993 began, was dramatic. Set, action, and protagonists all switched within the ongoing drama of the Utah ACLU. On a broader stage, the nation adjusted at many levels to the Democratic administration of President Bill Clinton. In Utah Democrats remained a minority, for defeated Vice-President George Bush had carried the Beehive State, reflected in the election of Governor Mike Leavitt and continued Republican dominance in the legislature.
Nevertheless, Utah politics changed in certain respects, too. Michele Parish’s sense of being the only woman ‘‘playing with the big boys” no longer applied in the larger political arena. Several women achieved election to visible public office including Congresswoman Karen Shepherd, lieutenant governor Olene Walker, state attorney general Jan Graham, and Salt Lake City mayor Deedee Corradini, as well as a number of councilwomen and mayors in smaller cities.
The Utah ACLU had gained a level of security and success that guaranteed the respect and attention of government, the media, and the public, however reluctant. Before leaving, Parish had enjoyed a cordial telephone conversation with Bangerter. Now the new governor proved eager to establish and maintain diplomatic relations with the Utah affiliate in ways that had not occurred before.
No longer was the Utah ACLU the smallest and most impoverished affiliate in the United States, as it had been thirty years earlier. Now it needed an administrator to handle a quarter million-dollar budget; who [p.170]could reduce costs to manage an expected loss in donations as liberals breathed easier with the end of the Reagan-Bush regime; who would not only “wage war” but attend to “domestic tranquility,” from solidifying and educating the ever-changing board to completing necessary paperwork.
Two capable, outspoken women were already employed, and Parish knew when she left that the board of directors would not look far for her successor. Very quickly Carol Gnade was asked to become executive director while Kathryn Kendell continued as staff attorney and was appointed spokesperson as well.
Despite the abilities of both Gnade and Kendell in forthrightly addressing issues, neither would spark the tumult that had marked Parish’s years. Parish defined herself in ways Gnade and Kendell did not, yet the difference in approach probably depended more on the reality that the issues and setting had shifted than it did on personalities.
What remained true on any stage hosting the ACLU was the adage that no civil liberties battle ever stayed won. The major victories of Parish’s time began, almost immediately, to fray around the edges. The prison lawsuit offered an example, for the state appealed the awarding of attorney fees even as medical reforms began at the Utah State Penitentiary. A mental health unit opened at the prison, and medical procedures were aiming for compliance with the court stipulations. The affiliate assumed oversight in seeing to it that the court requirements became reality.
The controversy around public prayer had altered but not ended. The types of prayers at graduation ceremonies and before other public school events that were found unconstitutional by the Supreme Court were discontinued overall. Many civil libertarians expected the Utah Supreme Court to rule similarly when it came to prayer in government meetings. But the public prayer bogeyman threatened to become a beast, with a growing effort to amend the state constitution.
Judge Thomas Greene’s ruling at the end of 1992 thrust a stake through the heart of the Criminal Abortion Statute after the Supreme Court upheld the essence of Roe v. Wade. However, the ACLU still fought a running battle over state restrictions. Although both Parish and Bangerter scored Greene’s ruling on the ACLU side of the tally sheet, [p.171]the state’s attorney and sometimes the media posted the state as the victor because of limitations that were upheld. Meanwhile, a long struggle for the awarding of attorney fees—the true marker of loss or triumph—lay in the making.
Despite these continuities, if ever a line of demarcation manifested itself in the history of the organization, that line appeared with the advent of 1993. The issues, the politics, the faces, and the tactics all rotated and adjusted. Clearest of all was the emergence of the affiliate as a power to be reckoned with.
That public perception, in itself, was enormously powerful, board president John Morris would remark. While the grandstanding had worked, he said, “the maximum efficacy for Michele’s style is past. The organization couldn’t sustain that level of antagonism indefinitely.” Nor had the board of directors wished it to.
As with any change, this required considerable internal adjustment. Throughout the first half of 1993, Gnade learned to juggle a variety of new and old issues. Although she would keep a lower profile than her predecessor, she, too, had to accustom herself to being a public figure.
One Sunday soon after she took the affiliate’s helm, Gnade stood at a large window in her new home below Brighton Canyon. Her neighbors were strolling home from church in groups, many holding hands. Gnade watched as a Fox News van came weaving through the people in the street and approached her house. She went outside to tape an interview on the question of censoring computer pornography as her neighbors stared. “Welcome to the neighborhood,” she told herself.
Throughout her first year at the helm, Gnade repeatedly felt that sense of being an immigrant. Fascinated and challenged by the state’s peculiarities, she concluded, “If you’re not nice to people who are used to being nice, you’re considered a New Yorker.”
From the outset, Gnade set her own course. Her background lay in administration, managing volunteers, and working behind the scenes. Instinctively she shouldered those roles first. During Parish’s last few months in office, Kendell had assumed responsibility for dealing with the media regarding abortion and several other issues.
“Kate is excellent at church/state issues—excellent,” Gnade would say. “With abortion, she handles 99.9 percent of it.”
[p.172]Meanwhile, with a beginning salary of $34,000, Gnade excelled at administration. “You grow every day in this position,” she would say, but she drew nourishment from personal roots that extended deep into the fertile soil of civil liberties and religious tradition.
The grandparents who had cared for Carol in New York City during much of her childhood were associated with the United Council of Churches. Her grandfather was a theologian and member of the Dutch Reformed Church. He left a vice presidency at Standard Oil because he felt a calling to religion. Her grandmother became known as ‘‘Tugboat Hazel” because she would sail into the harbor to meet domestic missionaries, then host them while they studied or worked within their religious communities.
During the years Carol lived with her grandparents, while her parents attended medical school, she relished the rich exposure her grandparents gave her to various beliefs. She also felt comfortable within the wide racial and ethnic variety among the citizenry of Manhattan.
Finally, when her father graduated from medical school, Carol climbed into her grandparents’ car and they drove to Chicago, sometimes singing a favorite song, “Jesus Loves the Little Children,” to pass the road time. “Red and yellow/ black and white/ they are precious/ in his sight,” Carol sang as the scenery swept by.
Gnade continued her education in Chicago, became a social worker, married, reared a family, and later divorced. After she became involved with Utah and decided to resettle there, she missed the racial and ethnic diversity of the eastern cities.
She was shocked when she realized that what she missed wasn’t missed at all by many Utahns. The insight came as she drove her tennis group to Liberty Park in the Central City area of Salt Lake. One woman said, “Oh, I don’t like to play at Liberty Park.”
“Why not?” Gnade asked.
“The people there all look so different. That’s the thing that’s so nice about Utah—we all look the same.”
Later, in her Boston Building office, she would muse, “It seems so paradoxical that I would end up here fighting this lack of understanding.” Gnade was also slightly disoriented when she spoke to [p.173]classrooms of students and addressed white faces almost without exception.
She began her tenure as executive director with several broad challenges, as well as a variety of issues. She was determined to understand Utah. She began making significant budget cuts to contain costs and solidify the affiliate’s resources. She sought to stabilize the affiliate’s approach to issues.
“It’s a total change in the way we operate, and more on the conciliatory side,” Gnade commented. “Some people get turned off by that; some like it. Michele used to say the money coming in was in proportion to the time during which the ACLU appeared on the news.” However, Gnade concluded, the incoming funds depended more on the issues picked up by the media. “The issues that made ACLU work were abortion and the Reagan/Bush onslaught on civil liberties. Both are neutered now as money raisers.”
Gnade and the board of directors tackled the new ACLU scenario at a retreat early in 1993. The affiliate made education a high priority, as well as keeping on top of current cases. The board decided to organize a speakers bureau and workshops and seminars for school teachers. Most affiliates had a large percentage of teachers in the ranks; for example, Massachusetts teachers comprised about 80 percent of that affiliate. “Here, most teachers are hostile,” Gnade said. Using a Connecticut model, the Utah affiliate also began producing a video for high school students to acquaint them with their First Amendment rights, as those freedoms influenced young lives.
The board’s concern with internal matters came across, as well. Gnade had been handed a stringent budget cut with the prospect of a drop in donations. During the years of expansion, costs had skyrocketed. Now Gnade faced the unenviable task of cutting by 20 percent. Before long the affiliate would move from the fourth to the seventh floor of the Boston Building, squeezing temporarily into much smaller quarters to save on rent.
Despite changes, Gnade felt the causes were not diminished. “Most people are feeling protected by the Clinton administration, but that’s a faulty conception both in Washington, D.C., and here. With a new administration, there’s not that much effect on civil liberties; those [p.174]issues don’t change overnight. But the money will change because there’s no crisis. We’ll still work on civil liberties in the war on drugs, searches and seizures, and overcrowding in prisons.”
The tightened focus both internally and publicly had been discussed just after the 1992 election at the biennial executive directors’ retreat in Santa Monica, California. There, Leslie Harris, of the Washington, D.C., Legislative Office, told a diverse group that the time had come for the ACLU to “move back to an affirmative agenda. We won’t be operating in back rooms, but rather figuring how many votes we have. A lot of people you know have suddenly become more powerful,” she said, noting that the legal community had backed Clinton. “We need to seek out moderate and liberal Republicans who are newly important.”
National executive director Ira Glasser then confronted the bad News—the financial strictures indicated in a current committee report. During the 1980s, Glasser said, the ACLU had prospered “like an undertaker—the worse things got, the more business we had.” Under Reagan and then Bush, he said, “Everything was attacked simultaneously and from the highest levels of government.” Donors had responded throughout the “siege” with increased contributions. “You don’t function at the same level when the siege is over,” he added.
Nevertheless, Glasser continued, although donations were expected to drop, good times for civil liberties were not necessarily at hand. “The good news and the bad news is that the siege is over. The ACLU can’t continue at pitch level; it has to draw back.”
The Supreme Court ruling on the abortion issue would have a great effect on finances, he said, even though in some states restrictions were still severe. Abortion would “become a subset of the race and poverty issues,” Glasser predicted. “Five hundred thousand white middle-class women won’t come to Washington, D.C., any time soon” to lobby.
Now, Glasser asserted, was the time for the ACLU to recover ground lost under Reagan and Bush in the areas of civil rights, criminal justice, church and state issues, and rights for homosexuals. He reminded the group that the Christian Coalition was a stronger and more effective voice on the right than the Moral Majority had been during the [p.175]1980s. “The Christian Coalition basically controls the Republican Party.”
In February 1993 the national ACLU voiced these concerns in a pamphlet titled, “A liberal letdown?” written by Naftali Bendavid, in Legal Times. He began:
When presidential candidate George Bush called his opponent “a card-carrying member of the ACLU” in 1988, the result was dramatic: 50,000 people rushed to join the American Civil Liberties Union. Each new inductee brought in as much as twenty dollars a year. Everyone was talking about the ACLU. People wore pins pronouncing themselves “card-carrying members.” Now, without an enemy in the White House for the first time in more than a decade, ACLU leaders are retooling their appeal.
The article quoted Glasser saying: “We must neither weaken nor sit Back.… We must turn our new opportunity in Washington into victories for civil liberties. At the same time, we must fight the growing and virulent strain of reaction at the grass-roots level before it can do more damage.”
The religious right found a voice with the Rutherford Institute in Virginia, which criticized Glasser’s recent depiction of their ranks as the “re-emergence of the grassroots forces of darkness.” In September 1993 the Rutherford allowed Glasser to respond.
He succinctly defined the ACLU’s policy of protecting free speech, then wrote: “The ACLU supports everyone’s free speech rights, including yours. But supporting someone’s right to speak doesn’t mean you have to support what they say.” Glasser told readers of the ACLU’s support of the Ku Klux Klan’s right to march, adding, “But we have also opposed the goals the Klan stood for and we have regarded the Klan as a ‘force of darkness. ‘“He concluded with:
Advocate as you will, and if any branch of government tries to stop you, call on us to protect your free speech rights in exactly the same way as we have protected everyone else’s free speech rights since 1920. But do not expect us to endorse your goals or to refrain from characterizing them as a “force of darkness.” That is, in our view, an [p.176]appropriate way to characterize a program such as yours, which seems designed to abandon the most traditional American values-the values codified in the Bill of Rights.
The change in scene nationally highlighted Utah’s tendency to differ from the norm. National would prioritize workers’ rights and oppose the religious right. These did not fit in Utah, Carol Gnade realized. Utah’s long tradition as an anti-union state fostered weak workers’ rights but nurtured little impetus to improve them. “There’s not a state that has worse workers’ rights, or where they don’t respect workers,” she said. As far as warring with the religious right, she quipped, “Let’s face it: we are the religious right in Utah.”
Utah sported its own brand of conservatism and tended to spurn advances from the religious right, just as some Christian denominations rejected Mormonism from their theological fold. In discussing this with LDS public information officer Stuart Reid, Gnade learned that the church would resist minister Pat Robertson’s Christian Coalition setting up shop in Salt Lake City. For one thing, many religious rightists—including the Christian Coalition—hated Mormons. Utah had plenty of inherent church/state issues, but the ACLU need not anticipate the Christian Coalition wielding power in local governments.
Reid himself illustrated the Utah style of religious influence in government, Gnade said, when he gained a seat on the Salt Lake City Council and quickly advocated reinstituting prayer at council meetings. Simultaneously he was reassigned at the Church Office Building, no longer dealing with legislative issues. But all that came later.
As she tried to get her bearings, Gnade cemented her relationship with Reid and other LDS emissaries who worked under the direction of the church’s Special Affairs Committee, led by church authorities. The ACLU’s relationship with the religious community had developed significantly.
The autumn before she left Utah, Michele Parish had heard from a variety of religious leaders about how distraught they were that the ACLU and the Society of Separationists had sparked a constitutional crisis by objecting to prayer in schools and in government meetings. The practice that perpetuated an LDS viewpoint at least had been unofficial. Now it might become not only legal but mandated.
[p.177]In response, Parish had organized a private roundtable of clergy, and John Morris asked former University of Utah president Chase Peterson, a liberal Mormon, to chair the meeting held at the Episcopal church. The roundtable included a variety of denominations, but also Parish; Chris Allen, head of the Society of Separationists; and an unofficial representative of the LDS Special Affairs Committee. The leaders drafted a letter to the governor opposing a special session to amend the state constitution.
Later Parish was invited to speak to Capitol Hill’s Democratic caucus, which was not out-of-the-ordinary, and then to the Republican caucus, which was a first. The Republican men not only questioned her about her own religious beliefs, she said, but told her the letter from clergy had borne significant weight with the governor. This led to Parish’s only direct conversation with Bangerter, a telephone call during which she thanked him for not calling a special session. “I said how odd it was that during all these years we’d never met. And he said something like, ‘I’ve kept up with what you’re doing. Bud [Scruggs] and Steve [Mecham, later chief of staff] have kept me briefed.’”
The roundtable led to a meeting between LDS church authorities and the outgoing and incoming executive directors of the Utah ACLU. At the Church Office Building on North Temple Street, the two met with Reid, Bill Evans from the Special Affairs Committee, and recently-ordained apostles Russell Ballard and William Nelson.
For Parish, this meeting—like her conversation with Bangerter and her parting letters to Elder Oaks and first counselor in the First Presidency Gordon B. Hinckley—represented a diplomatic victory and a sense of completion. Gnade viewed the meeting as a beginning rather than an end, and gauged the men’s attitudes cautiously.
Concerned with the energy gathering around the Religious Liberties Amendment as the legislative session approached, Gnade was particularly interested in working with LDS emissaries and officials. Yet, to Gnade, the meeting on the twenty-eighth floor of the church tower seemed bland.
“The first thing one of the apostles said was that we should understand that their ‘oversight’ was the world. Local issues occupy a very small part of the planet, a handful of the many things they have to deal [p.178]with.” Bland or not, the meeting’s importance lay in its occurrence. Historically it represented the first formal meeting between the ACLU and LDS leaders. Likely it was the first direct and friendly contact between an affiliate leader and a general authority since Mickey Duncan had tried to enlist the support of Marion D. Hanks for his civil rights bill.
As the 1993 Utah legislature convened, with Mike Leavitt in the governor’s office, the sense of change persisted. As Kate Kendell put it, “The legislature had just come away from some major spankings in Supreme Court rulings on abortion and school prayer. It was clear that our agenda was supported by the people who would ultimately decide the issues.” Nevertheless, when it came to the abortion question, the plot remained thick, for legislators clearly intended to capitalize on the high court’s allowance for certain restrictions.
With a year’s experience behind her, Kendell was well grounded and upbeat. She talked with every legislator who would listen to the affiliate’s concerns regarding “the attempts of the state to infringe on a woman’s reproductive choices and to dictate when, where, and by what method a woman may exercise this fundamental right.”
She soon found, as had Adam Duncan and Spencer L. Kimball long before her, where her greatest asset lay. “I’ve found it’s a tremendous advantage being from here. When legislators or others find out I grew up here, their entire demeanor changes.” Kendell noticed that if she did not make that point early in a conversation, the person introducing her often would.
In one conversation with a high-ranking senator, Kendell recalled, she had commented that she would like to see the abortion issue resolved because she had grown up in Utah. “His face completely changed. He asked where I grew up, we discussed who we knew in common, and so on. It has an incredible effect for good and cannot be overestimated.” Nativity would remain important, she said, as long as most of the population living in Utah hailed from Utah. Once her roots were established, Kendell said, her new acquaintance would then ask the equivalent of, “How did a nice girl like you get involved with the ACLU?”—an opening to discussing business.
Two key reproductive rights issues involved a twenty-four-hour [p.179]waiting period and pre-abortion counseling and the allowable medical procedures for doctors who practiced high-risk obstetrics and maternal-fetal genetics. Of the latter, Kendell would write, “It is critical to remember that these doctors do not perform elective abortions.…” Rather, she explained, they assisted conception and “helping those women to maintain healthy and viable pregnancies. Unfortunately, some women are not able to…and must, late into their pregnancies, make very difficult decisions.…”
Because some doctors felt Greene’s ruling had rendered their practice unfeasible, ACLU attorneys Howard Lundgren and Jeff Oritt joined with lead counsel Janet Benshoof to seek a legislative solution. A series of meetings followed involving the doctors, the governor’s office, the attorney general’s office, key legislators, and attorneys on both sides, with the hope of concluding negotiations before the session ended.
The House Human Services Committee considered the twenty-four- hour waiting period. Mid-session a Salt Lake Tribune article effectively captured the lingering complexities of the quarrel. “Mary Lou Tripp sees abortion in terms of black and white,” the piece by Dan Harrie and Michael Phillips began.
“‘I believe it’s murder,’ the anti-abortion activist told the House Human Services Committee.’ …If you truly believe in God—any of you—you do too. We have no right as women to murder unborn children. God sends children. We do not.’” The article noted that the committee chair ruled Tripp out of order for failing to restrict her comments to the bill, which merely added a restriction.
“The abortion debate in the Utah Legislature is much narrower than it was two years ago,” the article remarked, since the core of the Criminal Abortion Statute had been found unconstitutional. “But the issue still sparks the kinds of emotions exhibited…in Friday’s packed committee hearing.”
The committee considered a compromise that allowed nurses, physicians’ assistants, and certified nurse midwives—as well as the doctors originally specified—to give mandatory pre-abortion counseling. Limiting such counseling to doctors, the ACLU and others of the coalition argued, discriminated against rural women who had to travel long distances to a clinic in Salt Lake City.
[p.180]The medical restrictions were also discussed by the committee. “A group of University of Utah obstetricians and geneticists said earlier this week they have no choice but to appeal” Greene’s ruling, the article read. “They claim the law forces them to perform Caesarean sections in some cases even when it may endanger the mother’s health.”
That claim was rebutted by the state’s attorney, Mary Anne Wood, who said the doctors were spreading misconceptions. The Tribune quoted: “‘Doctors have all the discretion they need to do what is best for their patients,’ she said. ‘In no case does the law or the ruling require. Caesarean section deliveries where it would endanger a woman’s health.’”
Wood insisted that no amendment should be made to the 1991 statute unless the ACLU would agree not to appeal the case and “rack up attorneys’ fees by claiming their suit forced an amendment.” However, the ACLU fully intended to appeal to the Tenth Circuit Court if the issues were not sufficiently settled through negotiation.
The quarrel over attorney fees only illustrated the larger question of who had won the abortion battle. Greene upheld what he could of the abortion statute, given the Supreme Court’s decision. A few days after the committee met, attorney general Jan Graham appealed Greene’s ruling that the privacy element had been found unconstitutional, hoping to give the state legal turf in case the ACLU would not back away. The Tribune reported: “In fact, closed-door negotiations between politicians and attorneys to settle the case through a compromise amendment to the law are proceeding at a furious pace. The legislature adjourns today at midnight.”
The ACLU offered to drop its appeal if the medical issues were resolved, but no compromise came within reach. The arguments extended through 1994 and into 1995. One compromise solidified. Both sides agreed to a provision that a woman seeking an abortion would receive counseling by medical personnel at least twenty-four hours prior to the procedure, but not necessarily by the attending physician. Kendell felt this represented a significant concession by the ACLU, for the Supreme Court decision on Casey already had allowed counseling to be given either by the referring or attending physician. On the other hand, Casey had also required parental consent—which was upheld by the (181) court—and Senate Bill 60 did not insist on that. At least the compromise would not place a hardship on rural women.
On February 10, 1993 the Tribune praised the compromise, editorializing:
Opposing sides in the Utah Legislature’s endless abortion debate deserve praise for reaching agreement on a proposed twenty-four-hour waiting period. Here’s hoping this spirit of compromise can be extended to other facets of the abortion controversy.
Though the U.S. Supreme Court has upheld a woman’s constitutional right to choose an abortion prior to the time a fetus has a reasonable chance of surviving outside the mother’s womb, the high court also has held that requiring informed consent at least twenty-four hours prior to an abortion does not amount to an undue burden on a woman’s abortion rights.
Even as the conflict continued, the Utah ACLU hailed the 1993 legislative session as “a banner session” in the spring 1993 Reporter. A resolution seeking to soften the state’s exclusionary law for evidence seized illegally had been tabled by the House Judiciary Committee after “sailing through the Senate with very little opposition.” The affiliate counted this as a fortunate victory. It also announced that the affiliate would work more vigorously to reduce abortions through education “and to empower women so that an unplanned and unwanted pregnancy does not occur; or if it does, carrying the pregnancy to term is actually a possibility to consider rather than the incredible emotional, financial, and social burden it now is.”
During the months following the legislative session, the argument over abortion continued despite the compromise reached. On June 22, 1993, the Tribune reported that New York lawyer Janet Benshoof and other attorneys from the Center for Reproductive Law and Policy challenged Utah’s 1993 twenty-four-hour restriction, listing several cases in which women in Wyoming and Idaho found it difficult to travel repeatedly to Salt Lake City or stay long enough to meet the requirements. Another instance involved a homeless woman.
The pro-choice lawyers asked United States magistrate Ronald Boyce to recommend an injunction against the new statute. Assistant [p.182]attorney general Mark Ward argued that the clinics’ own literature recommended three trips, and that the women simply were not arranging their affairs efficiently. Boyce said he would make a recommendation to U.S. district judge Dee Benson soon.
The Utah-ACLU withdrew from the battle after Kendell received assurances that the rules would be stretched a bit for women in rural areas. However, Benshoof and the center continued to press for the injunction but lost in court. The twenty-four-hour waiting period went into effect. This affected the Utah Women’s Clinic and the Wasatch Women’s Center in Salt Lake City and, by extension, women throughout the Intermountain West. The Utah Department of Health replaced rough sketches in the consulting material with actual photographs of developing fetuses and included a detailed list of resources available to women who changed their minds about having an abortion.
From the Supreme Court to meeting rooms on Utah’s Capitol Hill, a number of abortion issues were settled. Yet the definitive judgment came with the bottom line—awarding attorney fees. By the end of July 1993, the Associated Press reported that Greene had awarded almost equal fees to each side, describing both as “prevailing parties.” The state was to pay the ACLU $71,663 in attorney fees and the ACLU was to pay the state $68,957. In other words, the ACLU netted only $2,706 for challenging the nation’s most restrictive abortion law. In win-lose terms, the judge ruled the outcome a tie.
While Oritt and Lundgren had volunteered their time, the ACLU had sought more than $700,000 to pay the New York-based attorneys who argued the case. The judge criticized how the attorneys had documented and justified their time, as well as the higher New York billing of $355 an hour.
The ACLU appealed to the Tenth Circuit Court. The Tribune quoted Kathryn Kendell saying, “The award of fees to the state not only flies in the face of our view of who won, but jeopardizes future civil-rights litigation across the range of issues.” Legal precedent denied fees to defendants (the state) in civil liberties cases, Kendell explained, unless the plaintiff’s case (the ACLU et al.) was found frivolous.
Mary Anne Wood told the Tribune that Greene’s decision was [p.183]“well-reasoned and well-supported and it will be difficult to sustain an appeal.”
The ACLU disagreed and appealed the award of attorneys’ fees along with the medical issues. “They think they won the battle,” Carol Gnade remarked, “but we definitely won the war. Abortion is still safe and legal. There are some extraneous issues we’re not happy with, but that’s all.”
Attorney general Jan Graham noted that the ALCU appeal would mean more cost to taxpayers, and in 1994 the parties met again to try to settle. However, Wood opposed settlement on several scores so vigorously that the ACLU attorneys threw up their hands. “Usually in a lawsuit there is a certain amount of mutual respect between lawyers, and courtesy shown,” Lundgren said. “That’s not Mary Ann Wood’s style. She was morally outraged and personally indignant that anyone would even challenge the statute.”
Attorney general Graham fired Wood in an attempt to get the issues resolved, saying that Wood’s arguments presented an immovable obstruction. But even as Graham met with legislators to defend her action, Governor Leavitt nullified it by hiring Wood as his personal counsel.
The Deseret News reported that the governor liked Wood’s argument that “the proposed settlement could have exposed the state to hundreds of thousands of dollars in legal fees being sought by the American Civil Liberties Union.” Leavitt told the newspaper, “We were anxious that we not compromise our law or our legal position.”
The article continued: “‘I am doing the negotiating on the settlement, and I have retained Mary Anne Wood as my legal counsel,’ Leavitt said. ‘I continue to have a very good relationship with Jan Graham and I continue to feel a need to have Mary Anne Wood involved in this case.’”
One close observer interpreted Wood’s firing and rehiring this way: The governor had to work with legislators, and many of them had supported the abortion statute and appreciated Wood’s efforts to defend it. Leavitt’s action, the observer suggested, pacified Wood and the pro-life side while slapping the wrists of the personally pro-choice attorney general. Officially, Leavitt maintained his support of both women, and he and Graham publicly insisted they wanted the appeal [p.184]resolved outside of court. It never happened.
Four and a half years after the Criminal Abortion Law passed, the U.S. Tenth Circuit Court of Appeals on August 2, 1995, handed the ACLU a hard-won and significant victory. In the decision, the panel of three judges restructured the abortion debate, reversing much of Greene’s ruling and remanding it back to his court. The higher court strongly disagreed that both the ACLU and the State of Utah had prevailed and should both be awarded attorney fees.
“Although Casey realigned the law,” the decision read, “it reaffirmed the central tenet of Roe v. Wade that state regulation of abortion impinges on a woman’s right to privacy. Utah’s attempt to play a significant role in toppling Roe v. Wade did not succeed, and we can now assess the constitutionality of the remnants of Utah’s pre-Casey legislation.”
First, the appeals panel reversed Greene’s application of the Criminal Abortion Law to post-viability abortions. Although Greene had used the Casey decision by the Supreme Court to invalidate the core of the Utah law, he then banned post-viability abortions except in documented cases of rape or incest, to save a woman’s health or life, or in case of a child with grave defects. “Re-writing” the Utah law to fit constitutional requirements was deemed an improper imposition of judicial judgment.
Second, the appeals court ruled that the language restricting fetal surgeries and medical procedures was unconstitutionally vague and therefore unlawful. This essentially freed doctors from worries about criminal liability in treating infertility and aiding troubled pregnancies.
The court of appeals reversed Greene’s ruling that the means chosen for a post-viability abortion must offer the fetus the best chance for survival. Requiring a woman to suffer “grave damage” before her interests predominated violated her protected right to privacy, they wrote, and “unconstitutionally devaluated her rights.”
Overall, the appeals court wrote, the ACLU attorneys’ proportionate victory considerably outweighed the credit Greene gave them for his favorable rulings on two of eight claims. In quantifying their “lodestar” success this way, the panel wrote, the judge had discounted “the relative importance of the plaintiffs’ successes and failures.” The reality was that the law had gone down. This should weigh heavily when Greene [p.185]re-awarded fees, the judges ruled.
“The Utah abortion law was designed to test Roe in this time of great uncertainty,” the decision explained, “attempting to force a sharp turn in abortion jurisprudence that would permit a state to ban abortions during pre-viability. Plaintiffs framed the present lawsuit against this backdrop of expressed hostility toward Roe. Just as defendants may have hoped to chart a new course for abortion jurisprudence, plaintiffs hoped to preserve a woman’s right to an abortion…[and] therefore reached for alternative theories that the Supreme Court had not squarely rejected.” While these theories did not persuade Greene, the appellate panel ruled, the ACLU was not frivolous in presenting them.
After rejecting certain ACLU arguments such as the similarity between the Criminal Abortion Law and LDS policy, Greene, in fact, had penalized the attorneys. The Utah law’s “exceptions directly track the official position of the Church of Jesus Christ of Latter-day Saints regarding when an abortion is permissible,” the appeals court ruled, concluding, “We are persuaded that the district court erred in holding this argument frivolous.”
The appeals court upheld certain aspects of Greene’s ruling, including paying New York attorneys at Utah rates. But it declared a winner, not a tie. Greene must re-award attorney fees to reflect the metaphorical trophy won unequivocally by the ACLU.
During the years of contention over abortion, the perennial issue around separation of church and state continued to smolder. The school prayer question was largely resolved in a legal sense with negotiations involving the Granite School District. To the north, the Davis School District decided not to risk prayers at school although board members publicly bemoaned their “liberties being taken away.”
The question of government meetings, specifically Salt Lake City Council meetings, still pended. The Utah Supreme Court had yet to rule on the Society of Separationists v. Whitehead. Brian Barnard and Kathryn Kendell, both of whom had argued before the state’s high court, watched with guarded optimism as the justices continued to deliberate.
In 1992 the pro-prayer camp pushed for an amendment to the state constitution to allow prayer in government meetings. Cole Durham, a [p.186]BYU law professor, urged the referendum, as did Gayle Ruzicka, leader of the ultra-conservative Eagle Forum. On August 25, the Salt Lake Tribune reported that the House Judiciary Committee had voted eleven to six “against racing through a series of public hearings in time to get the explosive issue on the November 3 ballot,” adding: “The action effectively kills any prospect that Utahns will vote on changes to the Constitution’s church/state separation clause before 1994.”
Michele Parish’s comment was boxed at the top of the article: “The circumstances of the current amendment drive reveal haste and lack of proper reflection. This process,” she predicted, “will result in a statewide debate over a broad range of church/state, religious discrimination, and other extremely volatile issues, pitting neighbor against neighbor.”
Thus when the Religions Liberties Provision reached the 1993 legislature, the ACLU—now under Gnade’s direction—and other groups dug in their heels to again delay any action. The amendment proposed rewriting Article One, Section Four, of the Utah Constitution in a way that smudged the line between church and state.
The Religious Liberties Committee included representatives of most religions in the state. Gnade met with the committee well before the legislative session, finding a group “who seemed burned out and felt that people were very condescending to them.” She concluded, “We have to do more to keep people’s morale up on those issues, and make it easier for burned-out people to be active.”
While the Deseret News had editorialized earlier in favor of an amendment, the Tribune’s Sunday editorial on February 21 was headlined, “Utah Must Not Alter Religious Freedoms Guaranteed by Its State Constitution.” It began: “Republicans in the legislature are determined to fire the first shot in a holy war to weaken the church/state separation provisions of the Utah Constitution. This crusade will only further divide the people of Utah along religious lines….”
The editorial quoted the Constitution’s key sentence: “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment,” then continued, “Senator Lyle Hillyard, Republican-Logan, has proposed two alternative amendments, both of which would strike this provision from the law.”
[p.187]Despite the newspaper’s warning, the Religious Liberties Provision passed the senate and went to the House of Representatives, as both Kendell and Gnade lobbied vigorously against it. Kendell asked Chase Peterson and others to call legislators and discuss the economic impact of such an amendment. Gnade procured the signatures of ten clergy on a letter urging legislators to:
delay consideration until the implications for the spiritual welfare of our State have been fully considered. We welcomed the atmosphere of cooperation that was beginning to develop in the Religious Liberties Committee, and deplore the antagonism that has arisen over this issue. We ask for further opportunity to dialogue with all the concerned parties.… If this amendment passes the legislature in the present atmosphere of antagonistic confrontation, welfare it will bring religious conflict in its wake. We believe that given sufficient time and the right public atmosphere, a fair solution to the concerns of all—for the freedom of an individual to pray, and the right of inclusion for both secularists and people of every religious faith—can be found. Please give us the opportunity to find a solution without making prayer to almighty God the political football it has become.
Signatories hailed from the Catholic Diocese of Utah, Shared Ministries of Utah, Our Savior’s Lutheran Church, Trinity A.M.E. Church, the First Presbyterian Church, South Valley Unitarian Universalist Church, Congregation Kol Ami, and Ogden and Orem Unitarian churches. Conspicuously absent was the signature of an LDS church representative although Elder Marlin Jensen, a member of the First Council of Seventy, had been present in committee meetings. He had made it clear he attended in an ex officio position.
Jensen’s presence but insistence on a low-key approach were significant. Opponents of the amendment understood that if the LDS church gave the nod, the amendment would pass immediately. Similarly a declaration that the amendment should not pass would kill it. However, Deseret News editorials, the church’s voiced concern over the ACLU’s opposition to prayer in the schools, and speeches by apostles Oaks and Ballard had already clarified the church’s position. Therefore, those opposing the amendment appreciated the church’s restraint.
[p.188]Ultimately the ACLU and the others succeeded in turning three crucial Republican votes against the amendment. In doing so, they surprised even themselves by defeating the bill. The March 3, 1993, Tribune reported that the “volatile mixture of religion and politics brewing under the surface in the Utah Legislature for weeks finally erupted Tuesday on the floor of the House” when the bill failed. “Lawmakers turned down by a thin two-vote margin a proposed constitutional amendment that would have protected prayer at government meetings. The vote did not kill the prayer issue, just delayed it a year.”
As this constitutional crisis took a breather, heads turned once again to the silent Utah Supreme Court for a sign, found none, and tensions eased. The ACLU had kind words for the LDS church’s political representatives. Kendell was acquainted with Jensen, an attorney, from her VanCott-Bagley days in Ogden before Jensen became a church authority. She considered him and lobbyists such as Stuart Reid and Bill Evans as people with “an abundance of reason and good will.” To Kendell’s regret, the church sent Jensen on a mission to Rochester, New York, several months after the legislature adjourned. “The slice of the LDS hierarchy I’ve dealt with,” she said, “are people of real intelligence and wisdom who have a love for the state and for diversity.”
Other encounters were less sophisticated. As she visited high school classes, Kendell learned that her status as an “insider with outsider views” confused many students especially on issues such as graduation prayer. “Did they pray at your graduation?” a student would typically ask.
“Yes, they did.”
“Did it make you feel uncomfortable?”
“No, not at that point. Then I was completely part of the mainstream.”
The resulting head shaking clearly asked, “Then why can’t you understand how we feel?”
Kendell realized that the issue had become less clear over the past year. Prayer advocates had gained a little “wiggle room,” as she put it, due to a Supreme Court decision on a Texas case allowing prayer if it was entirely student led. For the time being, Lee v. Weisman still disallowed prayers in Utah schools, but Kendell expected other challenges [p.189]might be raised in the future. To some degree, that depended on the Utah Supreme Court decision regarding prayer in city council meetings; also, it rested on the future of the Religious Liberties Amendment.
Gnade summarized her first eventful year leading the Utah affiliate in the December 1993 Reporter. They had, she wrote, responded to 749 written and approximately 7,300 telephone complaints during the year. The legal docket increased by seven cases. ACLU representatives had visited classrooms and colleges and worked closely with other agencies on community issues, fund raising, and lobbying efforts.
She wrote: “We developed a productive and dedicated education committee that has assisted in the production of a new video for high school students and educators. A goal has been set to present the video to twenty-five schools in 1994.” In addition, “We activated a strong…
Gay and Lesbian Rights Project with a commitment to building coalitions to improve an environment that is increasingly hostile to lesbians, gay men, and bisexuals.” With typical tact, Gnade ended the list of accomplishments with: “Please note that the ‘we’ that I refer to is not only our staff of three, but an increasingly active board of directors, extraordinary volunteers, and dedicated cooperating/volunteer attorneys to whom we owe so much for the vigorous defense of our civil liberties this past year.”
A summary of two of the ACLU’s primary issues that year was portrayed in a Tribune poll published March 1: “Do you feel Utah needs to amend its Constitution in order to permit prayer at public meetings?” Fifty-six percent of those questioned said yes. Another 37.5 percent said no, and 6.5 percent were unsure or refused to answer the question.
The second question read: “Is it worth additional state tax dollars for court battles to get a stricter abortion law for Utah?” This time 27 percent said yes, 66 percent said no, and 6 percent were unsure. Conducted by Valley Research, the poll admitted a 4-percent margin of error.
The Religious Liberties Amendment appeared to be supported by a majority of Utahns, yet the minority vote was significant considering the state’s religious demographics. The definitive word on abortion still lay nearly two years in the future, but most Utahns were unwilling to pay for another battle.