About a year ago, Alan Thompson, a religious man and chairman of the Ravalli County Commission, found himself in the difficult position of having to face down a room full of his staunchest political allies and fellow Christians.
The mostly female crowd, many with babies on hips and Bibles in hand, had descended on the county commissioners to persuade them to hire a Mississippi-based Christian law firm to appeal a district court ruling that struck down three of the county’s obscenity ordinances. Convinced that pornography was taking a personal toll on their men and children, the crowd looked to Thompson, a devout Mormon, as their legal savior to lead them back to a purer time, back to the days when “men’s” magazines were kept discreetly behind the counter.
Thompson and his two colleagues on the commission said no.
Initially, an appeal handled by the American Family Association Center for Law and Policy, a Tupelo, Miss. law firm, looked like a promising deal. Its lawyers had ample experience arguing constitutional law before state supreme courts, where the Ravalli County case was headed, and they pledged to represent the county for free. But when the three commissioners investigated further they discovered that the firm’s lawyers wanted the county to cede all control of the appeal to them, something that set off warning bells to the board and its attorney. And because the firm focused more on religious issues than on the law, the board and its attorney feared that the firm planned to exploit Ravalli County as a national test case.
“I personally wasn’t ready to relinquish control,” says Thompson, months after he made the decision that turned his supporters against him. “There were people who chastised us on both sides. But we felt legally it was what needed to be done.”
That the American Family Association Center for Law and Policy is a Christian law firm with its own agenda of promoting Christianity in the law was of no consequence to Thompson. “Being that they have moral convictions shouldn’t enter into it,” he says. That the county would lose all control over its own legal appeal did.
When it became clear to the crowd that Thompson planned to put political duty ahead of religious conviction, he felt the full force of their anger. Several of the women rose, pointed fingers at him, accused him of letting families down and insisted on continuing the debate even after the decision had been made. One woman literally thumped her Bible at him. Another stood and declared that she didn’t care if the appeal cost taxpayers millions of dollars. She wanted her children and her husband kept safe from the godless and corrupting influence of pornography at any cost.
Secular arguments like legal fees and maintaining legal autonomy didn’t sway them. The public discussion, Thompson now says, was “difficult when you know a yard’s worth of information and someone else knows an inch and says you’re wrong.” Still, for weeks to come he felt their anger, and was barraged by angry phone calls both at the office and at home.
Says Thompson about that difficult decision more than a year ago, “Well, I do my own thinking. I don’t walk in lockstep with anybody. I think the decision made at that time was the right decision.”
To this day, there are still people in the community who refuse to speak to him. Difficult as ostracism can be in a small community like the Bitterroot Valley, Thompson has shown a stubborn streak in office. “I’m not going to turn over the reins of government to
a local [pressure] group,” he says. “I’m just not going to kowtow to
Leading the charge
So who are these religious groups? And who is leading them?
“There’s no question about it,” says Dallas Erickson. “The people in our group are religious, that’s for sure.”
Erickson heads up a group called Montana HOME—Help Our Moral Environment. He helped form the group in the early 1990s as a way of educating people about the harm that obscenity was causing to society and to get laws passed restricting it. It is Montana HOME, and another group known as Montana Citizens for Decency through Law, that spearheaded the drive to outlaw obscenity in Ravalli County.
In 1994, Bitterrooters approved three ordinances heavily promoted by Erickson that outlawed the distribution of obscene material, the display of obscene material to minors and public indecency. Two years later, the ordinances were challenged in court by a group of writers, photographers and video rental entrepreneurs, including the Ravalli Republic newspaper in Hamilton, the newspaper’s long-time reporter Ruth Thorning, Missoula novelist Jon Jackson, a video store owner, who rented out X-rated movies, Chapter One Book Store owner Russ Lawrence and Hamilton photographer John Demme. The county was named as the sole defendant.
In November 1999 District Judge Jeff Langton ruled in favor of the plaintiffs, effectively striking down all three ordinances, though they were never removed from the books. Last week, under pressure from Erickson and Harris Himes, pastor of the Big Sky Christian Center in Hamilton, the board informally decided that it will, in fact, appeal the ruling.
Erickson acknowledges that Montana HOME pressured the county commissioners to take up the appeal, but says he is unconcerned about violating any separation of church and state. The country’s founders were religious people, he says, arguing what many Christian fundamentalists have said before: “There is no separation of church and state. That’s a figment of the media’s imagination.”
Himes quickly jumps in to smooth over Erickson’s faux pas. “It’s not as much a figment of the media’s imagination,” he adds hastily, “as it is [an interpretation of] the Supreme Court.”
Montana HOME, Himes says, represents “a wide range of desires. I would say, by and large, the great majority of people in HOME have a religious perspective. You have people who prefer that this country return to Biblical principles. At the other end of the spectrum are people who might not be of a particular religion but understand how pornography affects the community.”
Technically, Erickson is correct when he says that the phrase “separation of church and state” is not found in the U.S. Constitution, says Christine Kaufman, co-director of the Montana Human Rights Network. “But it’s been a long-standing principle of our government and a distinguishing characteristic of our democracy. Every time religion and government come that close you have these conflicts because we’re not all the same religion,” she says. “I think what we’re seeing worldwide is the effects of religious extremism and we must guard against it if we are to safeguard democracy.”
Although Ravalli County’s three ordinances had their origins in Christian principles, Himes says that outlawing obscenity is not strictly a religious issue, just one of plain decency. According to Erickson, who admits to have personally—and thoroughly—surveyed the fare offered in Missoula’s adult video rental shops, one can rent 180 videos showing women performing “sexual acrobatics,” women who are crucified and burned, and those who appear to be enjoying it all.
For Erickson, that’s the difference between pornography, which cannot be defined, and obscenity, which was clearly defined by the U.S. Supreme Court in 1973 in Miller vs. California. Obscenity, according to this ruling, is blatant sexual imagery that inspires unhealthy lust, appeals to the prurient interest and has no literary, political or scientific merit. And it’s obscenity that can be restricted, says Erickson, by adopting local ordinances as defined under Miller vs. California.
But even Miller vs. California doesn’t go far enough for many of these Bitterroot anti-obscenity crusaders. “What is allowed under Miller would not be allowed under the Bible,” Erickson says. “Anything that allows people to lust would not be permitted under the Bible.”
While the federal ruling outlawing obscenity remains the law of the land, Erickson says that federal attorneys don’t prosecute violations in Montana; hence the need for local ordinances. And since county attorneys and local judges are elected and must answer to their constituents—unlike federal attorneys and judges, who are appointed—they can be more easily swayed.
Which begs the question: Who decides what is obscene and what is merely pornographic? In Erickson’s world, complaints would be handled by the police, who would investigate and ask the county attorney to prosecute violators.
If the ordinances stand, Erickson concedes that First Amendment rights would probably suffer. But in the long run, he argues, the ordinances would protect many more people than they would harm.
Nonsense, argues county commission attorney Jim Mickelson. Society doesn’t outlaw guns because they harm some people. “They call themselves conservatives,” he says, referring to groups like HOME, “and take 180-degree views of the issues.”
Privately, there are those in Ravalli County who say that Erickson and Himes have a much larger agenda in mind than just ridding Ravalli County of obscenity. Their real motivation is to vote Judge Langton out of office when he comes up for reelection in 2004 as punishment for striking down the ordinances. Erickson and HOME, critics say, don’t want to see this matter resolved anytime soon, because a quick resolution would spoil their plans.
The wording of the ordinances is also paramount because their supporters want to see this issue taken all the way to the U.S. Supreme Court, where they believe the ordinances would be upheld. Local legal experts, however, suggest that the challenge would go no further than the state Supreme Court.
“People assumed Judge Langton knew more about the law than he did when they voted him in,” says Erickson. “Personally, if Judge Langton is so fouled up that he would go against basic Supreme Court decisions, I guess I would vote against him, but that’s certainly not the point of the ordinances. If the [Montana] Supreme Court overturned him, it may have political repercussions against him. If you’re asking me if I would campaign against him now, I probably would.”
Points of law
Why Langton’s ruling arouses so much opposition is odd, considering that he did not rule on the plaintiffs’ claim that the three ordinances violate the First Amendment guarantee of free speech. That fact has given the county commissioners the wherewithal to appeal this ruling without antagonizing either the Christian Right or First Amendment advocates.
Still, the Montana Human Rights Network’s Kaufman says the county commission won’t be able to avoid coming up against Christian sensibilities. “There isn’t any way the county commissioners can stay away from the religious hook,” she says.
But for the board of county commissioners, Langton’s ruling provides a way out of the trap of pitting religion against the First Amendment. The judge ruled that the ordinances are overly broad and go beyond state law restrictions on obscenity. Montana cities and counties may approve more restrictive obscenity laws than state law, but in this case, he ruled, the three ordinances were so overly broad that they could encompass behavior or materials already permitted under state law.
In his ruling, Langton wrote: “[A]n argument which has not been raised by the plaintiffs, but which appears obvious to this Court, is the potential for facial overbreadth challenges based upon the powers conferred to local governments by virtue of [state law]. The use of this power to provide ‘more restrictive’ ordinances than just provided by the statute on obscenity and the display of obscenity to minors creates a substantial risk for a constitutional challenge for overbreadth.”
Ironically, this was an argument made by neither side in the original lawsuit. It’s a ruling that’s thrown local lawyers for a loop, but also takes the county commissioners off the hot seat and provides them with a political, rather than religious, reason to file the appeal. Says Mickelson, “It diffuses the emotional issue.”
Since the ruling, Ravalli commissioners have interpreted the decision to mean that the county cannot pass any ordinances of any kind—not just obscenity laws—that are stricter than state law.
Although it appears the ruling addresses the obscenity issue only, some commissioners fear that it could affect all ordinances passed by the county, including restrictions on billboards, cell phone towers, stray dogs and open containers, to name but a few.
As Thompson puts it, “Judge Langton went off on another tangent than the arguments made by either side. It’s not a stretch of the imagination to know that if his ruling stands you can’t pass a
billboard ordinance. So that’s very important.”
The cost to taxpayers
In the two years since Langton’s ruling, the decision to appeal or not has been a political hot potato. Neither the current board of commissioners nor previous boards were willing to take on an issue so freighted with morality. The commissioners have been so reluctant to discuss their options that their attorney, Mickelson, virtually had to strong-arm them into settling with the plaintiffs for damages, the least controversial part of this case.
In the past two years, the board has only desultorily pursued the appeals process. For one thing, the board hasn’t found a lawyer willing to represent the county. But when the time clock appeared to be running out, the board was pressured to take the issue more seriously. And when they were handed a political basis for the appeal—the county authority issue—the relief among them was almost palpable. The county now has less than 60 days in which to file its appeal.
And so the race is on to find an attorney. Pastor Himes, who is also an attorney, has offered his services. Although he’s only licensed to practice law in California, he says he’s willing to do the legal legwork for the lawyer who is eventually hired to handle the appeal.
County attorney George Corn has already said he is unwilling to represent the county, and in fact, has largely avoided the entire fray. Corn’s wariness has prompted criticism from those who say he’s shirking his official duties.
“It’s not just a simple or straightforward constitutional case,” says Corn, who will ask Montana Attorney General Mike McGrath to clarify Langton’s ruling as it pertains to the county’s authority to pass ordinances. “I’m going to say, ‘Look, if that’s the issue, won’t you come in and take a look?’”
Likewise, Mickelson, who represents the county in civil matters, has said he will not represent the county in this particular case. “I guess I don’t agree with some of the language in the ordinances. I think they go too far.”
The ordinances, says Mickelson, encompass acceptable activity, and could restrict what people choose to have delivered to their homes via magazine subscriptions, cable TV, even the Internet. “It becomes a very subjective thing. To me, it’s almost too difficult to regulate. There’s a strong feeling among lawyers that the argument is a loser. I just don’t believe it’s a defensible position.”
Which may be why Erickson and Himes have submitted the name of yet another Christian-oriented law firm to represent the county. The Liberty Counsel, based in Orlando, Fla., is similar to the American Family Association Center for Law and Policy in that it directly advocates Christianity in the public realm.
The board has yet to decide whether to hire The Liberty Counsel, though they’ve vowed to consider it. Thompson says it makes sense to hire a firm with experience in constitutional law, but Mickelson has advised the board to hire a local attorney because the Montana Supreme Court would likely take a dim view of out-of-state attorneys arguing a case in Montana.
Some past and present county commissioners, including Betty Lund, have urged Erickson to simply reword the ordinances to make them invulnerable to a legal challenge—and save the county thousands of dollars. Erickson has declined to do so. He and his followers insist on taking the three ordinances, word for word, to the U.S. Supreme Court, legal costs be damned.
Thus far, the costs to Ravalli County taxpayers have exceeded $70,000. Considering the county’s other expenses—the county is expected to shell out as much as $300,000 to $400,000 to remodel the courthouse—questions arise as to what benefits, if any, taxpayer will reap from this appeal. In addition, a new district judge position was created by the 2001 Legislature and the remodeled courthouse must accommodate the new judge, his staff, a new courtroom, jury room and chambers by January 2003. The county is also planning on moving some of its offices out of the courthouse to a new building, which will be leased for 10 to 15 years at a cost of nearly $15,000 a month.
Despite such expenses, Thompson insists that the cost of this appeal won’t make much of a dent in an already bruised county budget. He estimates that an appeal could run anywhere from $8,000 to $10,000. “That’s not anything that would break the camel’s back,” he says.
Of course, if either side decides to appeal a ruling by the Montana Supreme Court—since this case deals with a state constitutional question, the Ninth Circuit Court of Appeals would not get involved—the next step would be the U.S. Supreme Court.
As for the cost of taking a case to the High Court, that’s sheer speculation, says Mickelson. “You’d have to find [an attorney] with more experience, and the cost would go up.” A good ballpark figure, he says, would be upwards of $100,000.
Where the true costs lie
“Taxpayers, whether they be in Montana or anywhere else, have come to appreciate and expect church and state separation,” says Steve Benen, a spokesman for Americans United for the Separation of Church and State, a Washington D.C.-based government watchdog group. “It’s not surprising that taxpayers might be frustrated supporting what would appear to be a religiously motivated campaign.”
Benen says that if ever there was a time to discuss the implications of religious extremism it’s now. But the nature of religious extremists, be they Christian, Muslim, or anything else, is that they don’t recognize how their own notions of morality can dramatically affect those who don’t share their beliefs.
Local pastors and their congregations have every right to speak out against obscenity or any harmful influences in a community, he argues. But they have no right to insist that their religious beliefs be enshrined into law. It’s not about religious vs. non-religious community members, Benen says, but whether a local government takes its marching orders from a church.
While Thompson, Mickelson and others involved in the case will not speculate on how the Montana Supreme Court might decide this case, few lawyers who spoke to the Independent believe it would go beyond Montana since the U.S. Supreme Court long ago addressed the issue of pornography, and this case raises no new legal issues.
At the state level, the high court could overturn Langton’s ruling on the county’s authority to pass obscenity ordinances, or it could decide on the constitutional issues that Langton did not rule on. Then again, it could do something entirely unpredictable.
“It would be nice to go to court and win the whole thing,” says Thompson. “Will that happen? I have no idea.”
Says Erickson, simply, “Let God decide.”