Utah’s Mormon influence creates First Amendment challenges

Thursday, July 21, 2005

Public schools in Provo, Utah, barred events on Monday nights in 2002 after Church of Jesus Christ of Latter-day Saints President Gordon B. Hinckley asked school officials to respect the Mormon practice of Monday “family home evenings” — a move that typically would prompt a religious-liberty lawsuit from the American Civil Liberties Union or Americans United for Separation of Church and State.

But in Utah County (which includes Provo), where 19th century Mormon leader Brigham Young’s influence permeates all aspects of life, and the ACLU of Utah often finds itself understaffed and overworked against the wealthy powerhouse that is the Mormon church, the school district’s informal policy went relatively unchallenged.

“We have to prioritize what we take on,” said Dani Eyer, executive director of the ACLU of Utah. “No one from the community came forward and complained in this case. We need a plaintiff to have a case. We pretty much need someone to care.”

Mormons are encouraged to stay home with their families on Monday evenings for “family home evening,” which often involves games, bonding and spiritual lessons.

Randall J. Merrill, superintendent of the Provo School District, said barring events on Monday nights was never a formal policy, just a suggestion by former superintendent Patti Harrington. Merrill said that when he took over as superintendent he convinced the school board that it was neither necessary nor wise to have a formal Monday night policy.

“I suggested that having such a policy was marginal with the First Amendment,” Merrill said.

Besides, Merrill said, the issue became one of practicality. It is almost impossible to schedule events on Monday nights, Merrill said, because people simply won’t attend.

Assistant superintendent Ray Morgan said the Monday-night debate highlighted the need for the school district to work with the community, which overwhelmingly supported barring events on Monday nights. “We try to use common sense and work with people, not against them,” Morgan said.

That raises an issue Eyer said the ACLU of Utah faces all the time — although there is strength in numbers, there is not always correctness. The majority often supports unconstitutional policies, she said, and the ACLU picks from these to challenge what it deems most egregious and of greatest impact.

The majority the Utah ACLU regularly faces is huge. According to recent surveys from the American Religion Data Archive and the Glenmary Research Center, Utah has the highest percentage (74%) nationwide of religiously affiliated individuals, most of them Mormons. Provo, home to Brigham Young University, has the highest percentage (90%) of religiously affiliated individuals of any metro area in the United States. In Provo, 88% of the total population and 98% of religiously affiliated individuals are Mormons. Ninety percent of the state Legislature is Mormon, according to the Columbia Journalism Review.

With a large and loyal base and an emphasis on tithing, the Mormon church is also a financial titan that wields significant influence. Although the LDS (Latter-day Saints) church does not reveal its finances, even to members, Time magazine put the church’s assets at $30 billion in 1997. “If it were a corporation,” Time reported, “its estimated $5.9 billion in annual gross income would place it midway through the FORTUNE 500, a little below Union Carbide and the Paine Webber Group but bigger than Nike and the Gap.”

It’s no surprise, then, that the ACLU of Utah, with its two full-time and four part-time employees, often feels like David battling the Mormon Goliath. Although it enlists the aid of “cooperating attorneys” frequently, the ACLU of Utah must choose its battles — something it has had moderate success with in the last few years.

The biggest showdown between the Utah ACLU and the Mormons in recent years has been a free-speech case in Salt Lake City’s Main Street Plaza. The conflict arose in 1999 when Salt Lake City sold part of Main Street Plaza to the Mormon church, which then imposed speech restrictions for the area.

Two cases emerged from this situation. The first (First Unitarian Church v. Salt Lake City) reached the 10th U.S. Circuit Court of Appeals, which ruled that the area was a public forum and that, accordingly, the church must allow free speech.

The second case (Utah Gospel Mission v. Salt Lake City Corporation) cropped up in 2003 when the Salt Lake City Council approved another deal with the church, which traded the Main Street area for church land in another area of town and for financial contributions. The ACLU again filed suit, only to have it dismissed by the Utah federal district court. The case is currently at the 10th Circuit.

Other lawsuits have included religiously motivated labor disputes. In 1999, the ACLU of Utah filed a suit on behalf of Provo schoolteacher Charles Larson, who claimed he was fired because he wrote a book (By His Own Hand Upon Papyrus) that was critical of the Book of Abraham, a text revered by Mormons. Larson, a former correctional officer, settled out of court.

The Utah ACLU got one of its biggest victories, though not in a religious-liberty case, in 1998 when U.S. District Judge Bruce Jenkins ruled that a high school in the Nebo district (contiguous to Provo) had violated a teacher’s First Amendment rights by forcing her to sign a gag order not to discuss her sexuality anywhere and by removing her as girls’ volleyball coach, all because she was a lesbian. The case, Weaver v. Nebo School District, has been cited in sexuality-based discrimination cases nationwide.

But the teacher, Wendy Weaver, was not out of the woods yet. In 2001, a group of Utah citizens asked the Utah Supreme Court to reverse the district court’s decision. The state’s high court, however, ruled that the citizens had no control over removing a teacher, nor did the court have any right to fire Weaver or demand that the school board do so.

“The decision is an important reminder that individuals cannot look to the courts to enforce their prejudicial views about lesbian and gay teachers,” the Utah ACLU said on its Web site.

Although the ACLU of Utah often is involved in litigation, its most effective tools can be the news media and negotiations, Eyer said. One non-lawsuit victory came in April when the first same-sex couple attended the Provo High School prom after the ACLU wrote and publicized a letter to Provo High School Principal Sam Ray demanding that the two male students be allowed to attend. The school allegedly had asked a same-sex couple to leave a previous year’s prom, and the letter said some students were concerned that school officials would not allow the gay couple to attend the prom. In the letter, the Utah ACLU pointed out Utah education regulations prohibiting discrimination based on sexual orientation. The school acquiesced, and the two students were presented alongside co-ed couples at the April 23 event.

Traditionally, Mormons oppose gay marriage but do not believe homosexuality is inherently sinful unless it is acted upon.

Other ongoing battles have not been so simple, or so easy for the Utah ACLU. Superintendent Merrill acknowledged that Provo high schools have what has been called “released time” — a class period tucked into the school day during which students can do as they please. For most students (Merrill estimates 80%) this means walking to a Mormon seminary, which is often across the street from the school. Students who aren’t Mormon often use this time for extra classes, such as in art, Morgan said.

The ACLU of Utah may have some concerns about this practice, Eyer said, but it is not necessarily an issue it would want to attack. And even if it did, it would have a difficult time. In 1948, the U.S. Supreme Court ruled in McCollum v. Board of Education, School District 71 that having “released time” for religious instruction inside public schools was unconstitutional. There could be religious functions off campus, though, as long as they didn’t use school funds or have the school’s encouragement.

And Provo schools do not encourage students to participate in religious activities during “released time,” Merrill said.

The Utah ACLU assailed what it called a prime example of religious discrimination in 2001. It sent letters to the State Attorney General’s Office and the Utah Restaurants Association saying the practice of giving a 15% “missionary discount” to Mormon missionaries violated Utah non-discrimination laws. The law mandates “full and equal accommodations, advantages, facilities, privileges, goods and services in all business establishments” without discrimination based on a number of characteristics, including religion. A Utah Restaurants Association official said “missionary discounts” were left up to individual restaurants. Eyer said she thought some restaurants had backed off the policy, but it could still exist.

The ACLU of Utah is not always fighting the Mormon church, though. Eyer recalled instances when the ACLU defended Mormons who were discriminated against for their religious beliefs, noting one in which the ACLU chastised a restaurant for discriminating against Mormon customers.

The Utah ACLU also took on the U.S. Army in 2004 after a student at Murray High School near Provo complained about Army recruiting practices on campus. According to the ACLU, a recruiter had a sign that said the Army would pay for an LDS mission. The ACLU of Utah wrote a letter in December 2004 charging the Army with a violation of the First Amendment’s establishment clause, which prevents government from sponsoring religious activities. The Army conceded that the sign was inappropriate and agreed to prohibit such recruiting practices, Eyer said. Army officials could not confirm this claim.

No matter who the opponent is, it is clear the ACLU of Utah has its hands full. Asked if she ever felt like she lived in a theocracy, Eyer responded, “Absolutely. Every day.”

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