By Michael Patrick O’Brien–
Thirty years ago this month, a Utah court battle took center stage in the ongoing fight for religious liberty. The case was memorable for many reasons, but mostly because it involved ancient rituals, prisoners, sweat, medicine men, a law and order judge, drums, and a mysterious wind.
The dispute started when Native American inmates at the Utah State Prison asked to participate in a 40,000 year old religious ritual─a sweat lodge ceremony. A sweat lodge is a small domed structure built with willow poles and covered with blankets or canvas. Inside, participants create steam with water and hot rocks, and then chant, pray, and seek spiritual renewal and purification.
Prison officials expressed concerns about security risks associated with a dark and confined space beyond the view of guards. Lodge advocates pointed out that numerous other state and federal prisons had allowed lodges for years without major problems. Yet, the state denied the request unless inmates agreed to use existing steam room facilities or add windows to the lodge for better observation.
Six inmates, led by an Assiniboine Sioux named George A. Roybal, filed a lawsuit in Utah federal court claiming the state had violated their First Amendment rights to practice their religion. They and their lead legal counsel, Salt Lake attorney Danny Quintana, also sought allies for their cause.
The Navajo nation joined the suit, as did local Utah churches and Native American advocacy groups. I was just three years out of law school, and working with my current firm Jones Waldo, when my friend Michele Parish called and asked me to help too. Michele was the local director of the American Civil Liberties Union (ACLU).
At the time, critics called the ACLU anti-religion, which was unfair because the sweat lodge case was just one of many times the ACLU has worked for religious liberties. It also was rather silly to try to pin an anti-religion label on either Michele, a devout Methodist and a member of her church choir, or on me, a practicing Catholic with a degree in government and theology from the University of Notre Dame.
The coalition helping the inmates filed the appropriate legal papers and prepared for a hearing set for mid-March 1989 before federal Judge J. Thomas Greene, one of President Ronald Reagan’s first appointments to the Utah bench. Greene, a former assistant Utah attorney general, was known as a law and order judge- tough, conservative, and fair.
On the big day, I walked into his courtroom at the Frank Moss Courthouse for the arguments. I was struck by the gold stars and bright shades of red, white, and blue decorations Judge Greene had designed or inherited from his predecessor in that space (I cannot recall which). It was a colorful setting for one of my first major court appearances as a young lawyer.
During the two hour long hearing, before a gallery packed with tribal representatives, news reporters, and curious onlookers, Judge Greene challenged all the involved attorneys. He quizzed us: “Couldn’t this be dangerous?” He interrogated the state’s lawyers: “Isn’t this just like any other house of worship at the prison?”
Those present expected him to think about the arguments and issue a decision several days later. He famously had kept in his chambers a large bust of a brooding ape with a sign reading “under advisement.” Judge Greene surprised everyone, however, when he announced at the end of the hearing, “I am ready to rule.”
Noting how other facilities had allowed sweat lodge ceremonies without problems, he said Utah could do it too. Rejecting the state’s proposed lodge modifications, Judge Greene explained, “That’s like saying to a Christian you can have a ceremony but don’t mention Christ.” The crowd erupted in applause when the judge ruled in favor of the inmates.
The Utah prison hosted its first sweat lodge ceremony a few months later. News accounts indicate that a medicine man built the lodge and that the Keeper of the Pipe for the Sioux nation led the purification rites. Inmates from the Blackfoot, Shoshone, Sioux, and Navajo tribes participated.
There were no security incidents. Similar ceremonies at the Utah prison have continued regularly over the last 30 years.
Before all that, however, there was one other remarkable moment in the case. Outside the courthouse, just after Judge Greene’s ruling, friends and relatives of the inmates surrounded us on the marble steps. They beat drums and a medicine man chanted. Then, a gust of wind kicked up, giving flight to a few small leaves and early spring blossoms, which danced around us in perfect symmetry to the music.
The Navajo use the word Nilch’i to describe the Holy Wind by which all elements of the living world communicate with each other. I do not know the origin or meaning of the gentle breeze that blessed me that day three decades ago, but I do know that it spoke to my soul.
From time to time, the unusual wind returns to me, now a much older lawyer. With the slight echo of drums, it brings warm memories of when we first met, but also teases me with fleeting glimpses of eternity. As quickly as it arrives, it eludes me again, and I am left to yearn for sacred wind to gently caress my face one more time.
*Mike O’Brien is a writer and attorney living in Salt Lake City, Utah. He is writing a book about growing up with the monks at the old Trappist monastery in Huntsville, Utah.
(This article also was published in the Utah Bar Journal July/August 2019 edition.)
