This would not last. In the late 1960s, BYU became the focus of protests at its athletic competitions, over the LDS Church policy of barring blacks from the priesthood.

The July 15, 1968 edition of Newsweek featured the cover story “The Angry Black Athlete,” which stated: 

It is a mess that extends from Niagara to the University of California, from Michigan to the University of Texas at El Paso. Sometimes the racial issue is inflamed by a coach’s get-tough policy.  “I could give in to a lot of Negro demands,” says one Southwestern track coach, “and keep my team intact. But someone has to hold the line against these people.”

At El Paso, track coach Wayne Vandenburg threatened to kick six athletes off the team if they joined the boycott of the New York Athletic Club indoor meet in February. The club was charged with discriminatory membership policies. Vandenburg won and the athletes competed. But two months later, after a talk with Harry Edwards, the same athletes refused to enter a meet at Brigham Young University in Utah because of Mormon doctrines about blacks. Vandenburg promptly dropped champion long-jumper Bob Beamon and five others from the squad.

Coach Vandenberg sued Newsweek for defamation and, though he won a jury verdict, it was ultimately reversed on appeal, based on the court’s finding that the statements were not made with reckless disregard for the truth. The court credited as accurate the account of how, in April 1968, several black athletes at UTEP decided to boycott the BYU meet because, inter alia, of their understanding of Mormon beliefs concerning blacks. Officials at UTEP, including Coach Vandenburg, responded with a statement that any athlete who did not participate in the BYU meet would be “voluntarily disassociated.” from the track team. Vandenburg v. Newsweek, Inc., 441 F.2d 378 (5th Cir. 1971); Vandenburg v. Newsweek, Inc., 507 F.2d 1024 (5th Cir. 1975)

On October 17, 1969, at approximately 9:30 a.m., 14 members of the University of Wyoming football team confronted Head Football Coach Lloyd Eaton and members of his coaching staff in Memorial Fieldhouse at the University of Wyoming. They were all wearing black armbands, and their spokesman was Joe Harold Williams, who was then serving as team tri-captain. The players had provided the coach with a letter dated October 14, 1969, addressed to Dr. William D. Carlson, President of the University of Wyoming, signed by Willie S. Black, as Chancellor of the Black Students Alliance, an organization on the campus of the University of Wyoming, demanding that:

(a) University officials at the University of Wyoming, as well as other member institutions in the Western Athletic Conference, not use student monies and university facilities to play host to and thereby in part sanction alleged inhuman racist policies of the Mormon Church.

(b) That athletic directors in the Western Athletic Conference refuse to schedule and play games with BYU so long as the Mormon Church continues such alleged policies.

(c) That black athletes in the Western Athletic Conference (WAC) protest in some way any contest with BYU so long as the Mormon Church continued such alleged policies, and

(d) That all white people of good will, athletes included, protest with their black fellows a policy allegedly clearly inhuman and racist and that the symbol of protest be the black armband worn throughout any contest involving BYU.

Coach Eaton told the players that a rule prohibited members of the University of Wyoming football team from participating in demonstrations and protests, and he advised  Williams that there would be no demonstrations or protests within the scheduled football game between Wyoming and BYU. When the players persisted and, at the behest of the university’s highest officials, they were kicked off the team. Williams v. Eaton, 310 F.Supp. 1342 (D. Wyo. 197); Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971); Williams v. Eaton, 333 F.Supp. 107 (D. Wyo. 1971); Williams v. Eaton, 468 F.2d 1079 (10th Cir. 1972).

The University of New Mexico student government, as a WAC-member school,was in the process of reviewing the University of Wyoming letter.  On November 12, 1969, the BYU Daily Universe published a letter to editor from Brian Mazill of Las Vegas, New Mexico. The letter read:

I am one non-Mormon who thinks the notion of the University of New Mexico’s student Senate is one of the most unreasonable examples of the bigoted minds of so-called ‘liberals’ I’ve ever seen.

In the first place, BYU is a privately-endowed school. It is not supported by the taxpayers like the other universities are members of the WAC.

Mainly, the reason for Negro athletes being at the other schools stems not from any great degree of humanitarianism on the part of those institutions. To the contrary, the reason for many, or even most, of Negro athletes being at these schools is because of their acknowledged athletic ability. The alumni preferred these schools during the past 10-15 years to give athletic scholarships to Negro athletes to assure success for their teams.

The Negro athletes have won games for these schools, they have seen and heard the coed cheerleaders go into hysterical frenzy over their exploits—only to find, after the game was over, they were supposed to keep their place. They were led to believe that by attending otherwise predominantly ‘white’ (a silly word, if you examine it closely) schools, the Negroes would be pals with all the other students and it didn’t work out that way. Now, the more militant want their own dorms, eating facilities, etc.

On the other hand, Brigham Young University has competed with the other members of WAC handicapped by not having black athletes on their teams, but the students, and alums, have registered no complaints. Mind you, BYU is not tax supported, therefore, I ask what the hell business it is of your sanctimonious hypocrites who the BYU administration wants to have on its campus?

The Negroes have reached the state in their development in this country at which anyone who doesn’t agree with them is considered a ‘racist,’ or bigot.  The white students at schools such as New Mexico who voted for the expulsion of BYU from WAC don’t give a real hoot about their black brothers. They just consider it the in-thing to be ‘liberal’ about such matters.

If the LDS only want to have whites for the priesthood, what business of the Negroes? Do they have members of the Black Muslims, the Black Panthers, who are ‘white’? As a Protestant, such as I am, can I take communion at a Catholic Church? As a non-Mason can I attend the secret sessions of the organization? All the more power to Brigham Young.

After Ezra Taft Benson’s death in 1994, a photocopy of this letter was found in his papers.  The final paragraph of the letter, in the margin, were two words written in Benson’s handwriting: “Very good.”

A WAC basketball game between Colorado State University and BYU was scheduled for February 5, 1970, in Moby Gymnasium on the CSU Campus at Fort Collins, Colorado.

During the game’s halftime intermission, pom pom girls from BYU were performing on the basketball floor when a group of persons (largely students) invaded the basketball court carrying signs of protest against the claimed discriminatory practices of the Mormon Church and BYU. This group marched the length of the floor and disrupted the girls’ performance. Campus police and City of Fort Collins police were called, and they attempted to control the melee. A fight broke out between an employee who was trying to wipe down the basketball floor and several of the demonstrators, and it was stopped by the police only with substantial difficulty. A flaming missile was thrown from the stands onto the floor. Someone either threw or wielded a lethal piece of steel angle iron which struck a press photographer in the head. Tempers of many of the spectators (including the tempers of the overwhelming majority of the students in attendance) became short, and the rage of the crowd at the unauthorized interruption of the halftime activities and delay of play of the second half became dangerously apparent. The situation was tense, and panic or a riot was more than a mere possibility. However, the police were able to cajole the demonstrators into leaving the floor before serious injury occurred. Evans v. State Bd. of Agriculture, 325 F.Supp. 1353 (D.Colo. 1971).

Eight years later, the Church lifted the ban on blacks holding the priesthood.

Christina Axson-Flynn was studying acting at the University of Utah. A Mormon, she was uncomfortable that the school’s acting exercises required her characters to utter some dirty words. So she sued. Axson-Flynn v. Johnson, 151 F Supp 2d 1326 (D. Utah 2001).

Boyle and Axson-Flynn both claimed that their First Amendment rights were violated. That part of the Constitution, in addition to forbidding the government from establishing religions, prohibits it from interfering with the free exercise thereof.

Mormons are taught to be in the world but not of the world. Sometimes, this requires them to take stands. Were these two free exercise lawsuits part of that proud tradition?

I have my doubts. I am generally uncomfortable when taking stands means hiring plaintiff’s lawyers to stop people from doing what they want to do, rather than just walking away, especially when there is no harm beyond elective activities. Why? In addition to clogging up the legal system, lawsuits like this create “externalities.” That’s a fancy economic term for “unintended consequences.”

Want more facts?

Boyle was a golf professional for five years starting in 1969. He played golf on Sundays about four times but his religious beliefs became stronger over the years and he began to feel that it is not appropriate for him to golf on Sunday. Boyle was a member of the Jerome Country Club and belonged to the Men’s Association where his dues contribute to the prize money awarded at the club’s tournaments. A tournament round of golf consisted of playing 18 holes, and typically has an opening round on Saturday and a closing round on Sunday. In 1993, the Jerome Country Club professional, John Peterson, allowed Boyle to play 36 holes on Saturday during a club tournament after Boyle complained that he could not play the final Sunday round. But in 1994, Peterson refused a similar request by Boyle to play 36 holes on Saturday, and Boyle did not play in that tournament. It was undisputed that the club never refused to permit Boyle to enter a tournament or to play a round of golf.

In 1998, Christina Axson-Flynn entered the University of Utah’s Actor Training Program (ATP). Axson-Flynn, who is Mormon, refused to say the word “f___” or take God’s name in vain during classroom acting exercises. During Axson-Flynn’s first semester in the program, ATP faculty members-told Axson-Flynn to “get over” her refusal to use those words, saying that not using the words would stunt her growth as an actor. Axson-Flynn did not “get over” her refusal to say the words and eventually left the ATP (and the University of Utah) before the end of her second semester; although never ordered to leave, she assumed that she would eventually be forced out.

The absurd extension of the Boyle lawsuit – what might illustrate the externalities to Mormons – involved some Seventh-Day Adventists who sued because the basketball tournament in which they wanted to compete took place on Saturday, which is their Sabbath. Nakashima v. Board of Education, 204 Or.App 535 (Ore. 2006).

Now, what would happen if sports organizers were forbidden from holding events on both Saturday (as demanded by the Adventists) or Sunday (as demanded by the Mormons)? There would be no weekend sports competitions.

The extension to the Axson-Flynn lawsuit? This was a tougher one for me to find and posit. I settled on litigation over Salt Lake City’s West High’s choice of songs for the Holiday season. Rachel Bauchman was Jewish, and did not want Christmas foisted upon her. To her, the Christian songs were as offensive as baudy lines were to Christina Axson-Flynn. So she sued. Bauchman v. West High School, 900 F Supp 254 (D. Utah 1995).

What would happen if students could sue over being forced to do anything their conscience decided was objectionable, like Axson-Flynn and Rachel Bauchman? Standard curricula would become extinct. Copyrighted property like songs and plays would be subject to alterations.

Maybe it’s just me, because I am a lawyer who finds himself largely agreeing with much of the anti-attorney sentiment. My profession has become rotten through unscrupulous plaintiff’s lawyers. I think sometimes righteous causes in defense become offensive when they are ….. offensive, as in affirmative.

I do recognize that some of the greatest advances in civil rights occurred because of affirmative litigation. This does not make me cheer for the likes of John Boyle and Christina Axson-Flynn.

Part of it has to do with their claimed injury. For example, I would be among the first to come to Boyle’s defense if he were not admitted to (or kicked out of) the Jerome Country Club for refusing to play on Sunday, and Christina Axson Flynn if she were booted out of college entirely for refusing to utter saucy script lines. Wrongful reprisal surely requires affirmative litigation. However, these were not the facts of these cases. When people who are merely annoyed – who have their feelings hurt – hire lawyers to bring affirmative cases when they do not get their way, they lose their moral authority, at least with me. These are not really civil rights cases.

In case you were wondering, both the Boyle, Axson-Flynn and Bauchman cases were dismissed, though Axson-Flynn won a partial reversal from the 10th Circuit Court of Appeals. Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004).

As I attended high school and early-morning seminary, I began to notice that there was more than one kind of Mormon in the world as well. Some Mormons had such different attitudes and beliefs from me that I sometimes felt like I had grown up in a different church. Also, some Mormons I knew made strange comments, like whites shouldn’t date those of other races because the prophets have counseled us not to, or Americans shouldn’t pay income taxes because the prophets said not to. To my horror, as one raised by a baby-boomer mom to respect Martin Luther King and John Kennedy, some even used statements of the BRETHREN to condemn the civil rights movement as communist-led and hence Satanic.

Going to BYU, serving a mission, getting married, going to grad school, starting a career, and having a kid have exponentially increased my exposure to THAT KIND OF MORMON. But increasingly I learned that there were others too. There were Mormons who were pro-choice, Mormons who were gay and most interesting of all to me, those who acknowledged there was at least more than one kind of Mormon .

Given this diversity, is there something that all Mormons have in common? What does Joseph Smith have in common with Gladys Knight? And why are there so many kinds of us?

More ominously, should there be so many kinds of us?

I’m confident that no matter what kind you are, you will be able to unite with me behind this timely message: