SALT LAKE CITY — When Utah's Supreme Court upheld prayers at government meetings as a legacy of Utah's Mormon heritage, four of the five justices were Mormons.
Now it's an all-Mormon bench. Is that a problem?
Chief Justice Richard C. Howe doesn't think so.
"I don't see anything wrong with it," Howe said in a rare interview.
"Whether you belong to one church or another shouldn't make any difference on this court. What we want on this court are men and women of good character and legal ability, and their own private view on religion really doesn't enter into their decisions on this court. There may be an exception once in a while, but it would be very subtle."
The latest appointments by Gov. Mike Leavitt underscore the dominance of the Church of Jesus Christ of Latter-day Saints in Utah affairs.
"Anybody who lives here knows where all the power is," says Matt Gilmore, 90, a lawyer who for many years was general counsel to the Utah Tax Commission.
"You got a Supreme Court that's all Mormon, a Legislature that's practically all Mormon, an executive department headed up by a Mormon and a Republican Party that's all Mormon."
That may not be surprising for a state founded by a church theocracy and still 70% Mormon. But Leavitt's two February appointments broke a tradition that dates from 1926 of having at least one non-Mormon on the high bench. It was in 1926 that territorial judges who were elected by popular vote began to retire.
Now, from local to federal courts in Utah, members of one faith overwhelmingly rule the bench.
A bitter Christopher Allen objects to that.
"I have zero confidence in them," says Allen, Utah director for the Society of Separationists, which lost the 1993 prayer case. "Utah is a solid theocracy, and the Supreme Court has proven to be spineless."
The separationists thought they had a case in Utah's constitution, which draws a deeper church-state divide than the federal constitution, a price it was willing to pay for statehood in 1896.
Unlike the federal charter, the state constitution spells out a ban on the use of government property for religious worship.
But the Supreme Court sanctioned opening prayers for city council meetings, as long as anyone could offer a sincere prayer. In a sole dissent, former Justice I. Daniel Stewart, who is a Mormon, scolded his "flatly wrong" colleagues. "Having decided the word 'no' does not mean 'no,' the majority rewrites the constitution," Stewart wrote.
The majority decision ran for 78 pages, covering the sweep of Mormon history from religious persecution to dominance to polygamy battles and vitriolic newspaper rivalries. It concluded by rejecting a "rigid" constitutional interpretation that it said would be "hostile" to all religions.
"This is a state, after all, that was settled by people with primarily religious motivations," said the opinion written by Michael D. Zimmerman, who was the Supreme Court's only non-Mormon when he stepped down this year.
"He's in the same boat, serving the most powerful interest in the state--the Mormon church," Allen asserts. "I think it was arranged that he would author the decision."
Zimmerman dismisses Allen's criticism as wildly conspiratorial.
"It's a sensitive topic because some people feel oppressed," says Zimmerman, 56, now a practicing lawyer who was replaced along with Stewart in February by state judges Michael J. Wilkins of the Court of Appeals and Matthew B. Durrant of 3rd District Court.
Then an Episcopalian and now a Zen Buddhist, Zimmerman says it was difficult for him to discern any bias among his Mormon peers.
But judges "don't come out and say, 'I know what the law says, but based on my religious training, you lose,' " says civil rights lawyer Brian Barnard.
Howe cited one Barnard victory as evidence that the church encounters its share of defeats before the Supreme Court. The case was about a Mormon bishop found liable for misconduct for giving a runaway boy a plane ticket to West Virginia, to his mother's horror.
The Church of Jesus Christ of Latter-day Saints also was ordered to pay damages when a Boy Scout fell off a scoutmaster's moving truck and was injured.
A bigger test of the court's loyalties could be around the corner. When the Mormon church bought a block-long stretch of downtown Main Street for a plaza, the deal rubbed salt in old social wounds and inflamed a new furor over church and state, says law professor John J. Flynn of the University of Utah.
The church bought the street for a public plaza linking its headquarters and Temple Square. But the city deeded away public rights to assemble, protest, play music and even to smoke. So the American Civil Liberties Union sued, claiming the city sold the First Amendment along with a street.
The core of the lawsuit is in federal court, but Utah ACLU attorney Stephen Clark moved a piece into state courts that could get decided first, challenging the way the city's Mormon-dominated council approved the sale.