A few years ago, the American Civil Liberties Union gathered in San Francisco. After the official meetings were over, Jack Van Valkenburgh, the founding executive director of the ACLU of Idaho, took off with a group of lawyers to a mountain lake near Yosemite.
I was living in San Francisco at the time and headed out to their camp a day behind, hauling extra beer.
I arrived to find an empty camp. One by one various ACLU lawyers returned from the woods. But as night fell, VanValkenburgh was nowhere to be found. We sat around a fire placing bets on his chances for survival, and then heard a loud voice coming from below.
"Nathaniel," he shouted. "Did you bring the beer?"
I met Van Valkenburgh about seven years ago. In that time, I have watched him work the crowd on the dance floor at his storied Foothills home, crash his snowboard many, many times and take every possible chance—even while dancing and snowboarding—to debate civil liberties issues.
But I had never asked him how he got into civil-liberties law or why he started the ACLU of Idaho.
Van Valkenburgh announced his resignation, effective May 1, after 18 years defending women, atheists, Nazis, homosexuals, prisoners, Christians and other Idahoans who love to hate him. We sat down in his office for a lengthy interview.
- Joshua Roper
- Jack Van Valkenburgh
BW: Tell me how the ACLU got started in Idaho.
JVV: I was one of four founders. Essentially, I was the on-the-ground guy who wrote a grant proposal and led the effort to get us an office and a staff. But I worked closely with three others: Liz Brandt, Alan Herzfeld, Alan Kofoed. In 1988, we created a legislative committee. At the time, I had just begun working for the (Boise) City Attorney's Office, and I was a little two-bit city prosecutor. But I was also a board member of the ACLU and became the board president of the ACLU. I wrote a grant proposal that got us $3,000 from the national office to fund a part-time attorney and a part-time lobbyist in 1989.
By 1990, I quit my job as the city prosecutor to apply for the job as lobbyist. But lo and behold, there was another, more qualified individual who had applied ... Janet Crepps. And we basically split one salary. Anyway, we worked our asses off that 1990 legislative session ... the very first newsletter, I spelled her name "Kreeps." It's not Kreeps.
Did you have an interest in the ACLU from law school or even before that?
I volunteered for the ACLU in San Francisco and thought it was a really principled and effective organization. I had volunteered for other organizations in Nevada and in Virginia and in other places ... in law school in Boston. But I never felt the integrity that I felt in the ACLU. There was an organization that really had principles, that would really be applied equally to liberals and conservatives, Democrats and Republicans, and it definitely struck a chord with me.
How did you get to Idaho?
I went to law school in Boston, Northeastern University, but I knew friends from Evergreen (State College in Washington). I wanted to be West. The woman I was living with wanted to be West, and ultimately, we split up, but I stayed West. It was a good time to make a change. That was the fall of '87 when I moved out here. I actually had thought about working perhaps in the environmental arena, but there were a lot more people who were doing environmental work than were doing civil-liberties work.
Do you remember the public reaction when the ACLU was formed here in '89, '90?
There was a lot of excitement. The first Bill of Rights celebration that we had, monks were visiting from Tibet, and it was just a fluke, but we got them to visit us as well. Rosalie Sorrels sang and Nadine Strossen, our national president, spoke and these monks chanted to the point that you thought glass was going to break.
Do you consider the ACLU in Idaho a political organization?
Yeah, we're political. We're nonpartisan but we can't help but be political. We go to the Legislature and we go to Congress all the time. We have views and we push issues and we have campaigns.
Abortion was, from the outset, a major issue for the ACLU of Idaho, and this year at the Legislature, there were more abortion bills ... have you made any difference on abortion rights?
It's still an issue. I don't think the issues are quite as substantial now as they were and the (abortion coercion) law that's likely to be signed by the governor (HB 654) doesn't change anything. It's a waste; it's just a feel-good law for the anti-abortionists. Nothing is made criminal that is not already criminal.
There's still serious reproductive-rights issues, and we could face another one any day, or at least next session. Especially with the U.S. Supreme Court changing, we may be back to 1990 again, but we've made substantial grounds and settled various law. We haven't had the fervency of the anti-abortion or the pro-choice battles that we had in the 1990s.
Why are abortion rights such an important issue for the ACLU?
We view it as the right of a woman to control her body and to control her medical privacy. We do recognize that a fetus is going to become a living person upon birth, and we do recognize the rights of a fetus upon fetal viability, much as the U.S. Supreme Court does under Roe, but until then, we think it's really a woman's choice in consultation with her doctor, her partner and whoever else she chooses to consult with. It's a matter of personal autonomy.
Do you consider the ACLU a proactive or reactive organization?
We're generally reactive. We are like the firemen of the Bill of Rights so that when there is a fire, we act. When there's not, we're happy. Yes, we like to proactively address issues so as to advance civil liberties or to restore ones that are lost, but as often as not, it's all we can do just to put out the fires that show up at our office every day by mail or phone call.
Talking about a woman's right to control her body ... there's been perennial crackdowns at strip clubs in Idaho over the years ... are there any parallels between abortion rights and strippers' rights?
That's a free-speech issue. You should be able to dress as you see fit, especially in a private or closed establishment. I don't know what business the government has in telling consenting adults how they need to dress inside a building that's not owned by the government. People are there consensually; they ought to be allowed to dress however they want. Or not dress.
In 2001, the Boise City Council passed a nudity ordinance requiring women to cover their nipples, among other parts. Were the ACLU pasties your idea?
No, I wish they were. They were, in a sense. It was a letter to the editor that I saw one morning in the Statesman during the time that Mayor (Brent) Coles was advancing the nudity ordinance in Boise. The ordinance provided that women would need to wear pasties on their nipples. But a letter said, 'I know the mayor and the city council wouldn't discriminate against women. If women are required to wear pasties, I'm sure men would be as well ... I'll be down at the River Festival and I'll need some pasties, where can I get some pasties?' And I thought, "Oh, here you go, let's make some ACLU pasties."
Fortunately, a volunteer or two were willing to help us. And so we debuted them at a gay pride event, and at the Statehouse, I remember a bare-chested young man wearing his pasties. There were a couple of dozen that had tassels.
There was also a thong rally a few years later, to protest police crackdowns at strip clubs.
The thong wearing, that was pretty wild.On a hot summer day at noon, a dozen women were in their thongs and one man was in his thong. In the photo, the (Statehouse) dome is between the legs of the woman, you know the camera is behind and she's looking this way and there's this crack.
And what's funny is I got a letter from my national board president Nadine Strossen because, I think it was Fortune Magazine, picked up on this and the story goes: "There were 11 or 12 women there and one man dressed in a thong ... Jack Van Valkenburgh, director of the ACLU said, 'this is a matter of free speech ...'"
And so my national director clips this out and says, "Were you or were you not the man in the thong?" My only thongs were my sandals.
What has the ACLU done about Bible distribution and seminary time in Idaho schools?
In general, there had been, less so now, but there had been frequent complaints of using the government, particularly public schools, to advance religion. If it was in Southeast Idaho it was typically the Mormon religion, and in Grangeville, it was the Catholic religion ... we had the Rockland one and then the big one was Grangeville. That was triggered when Alan Kofoed, my board president and I, did a road trip up to Northern Idaho and he spoke in Grangeville, in his hometown. It was a packed city hall. I think we had gotten a complaint that there had been a prayer at graduation and it was a little nervous; there was some real hostility pointed our way. We did file the lawsuit, and it went all the way to the U.S. Supreme Court before it was declared moot. But we won at the 9th Circuit, so that was a good thing.
Are violations like school prayer more settled now in Idaho?
I think the law has been made a little more clear as to the demarcation between what is permissible. Religious liberty we want to protect. It's OK for children to pray quietly in school as long as they don't disturb others. But they can't be directed to do so or coerced to do so by the school authorities. We still have issues; I don't want to say that things are that much better. Things are a little quieter now than they were, but that can change. Certainly, there may be violations going on in rural parts of Idaho that we just don't hear about because they know that if anybody complains to the ACLU, well, the victims know that they are going to be persecuted. You may have read of a plaintiff in Preston, Idaho—her cat was shot through the head and left on her doorstep, and there were threatening phone calls at least if not letters.
Outside of the lawsuits and the cases that you've taken on, does the ACLU have any working relationships with the Mormon Church or with other churches?
We've had board members, used to have an active Mormon, but he was a college student and he went off to law school.
I have a lot of contact with people of other religions. Tri Robinson of the Vineyard, Dennis Mansfield, and I haven't talked to Bryan Fischer this year, but I certainly have in the past.
Mansfield and Fischer have been at the center of church-state provocations over the years. Do you see them around town?
I don't see Fischer, though I have in the past. He's come by to talk to me about certain issues, and the same had been true of Dennis Mansfield. Now I see him only in context of his organization, New Hope ... I bumped into Dennis (at Boise Contemporary Theater) and we had a pretty good talk after the performance. The fact is, we're civil, and we're friendly enough. He may consider me a friend ... he's engaged me over the years, and I think he's mellowed out.
He still disagrees with me with respect to government promotion of religion. He's certainly evangelical, but I don't have a problem with evangelical people so long as they don't try to get the power of the majority, the power of the government to advance their cause.
Of all the civil-liberties issues, does the religious stuff get the most attention, especially in Idaho?
Yeah, it's as core a concern for us and our members as any concern in Idaho and nationally. I think many people respect us because we are so dedicated to the separation of church and state. We recognize that it's integral to protecting religious freedom, so those issues are inevitably a priority for us. For instance, our board had a retreat last year and identified three priority issues. But we knew church-state issues were No. 1, so we kind of cheated.
What common ground has the ACLU found with Idaho politicians on 9/11 security and privacy questions?
I'm not always pleased with how our federal delegation votes on warrantless surveillance or FISA issues, but certainly the Republicans recognize the right to privacy as a concern and we do, too. So even Helen Chenoweth, we'd be on her side and she on our side on certain Fourth Amendment issues.
I think Larry Craig did a pretty good job attacking the feds' abuse of Randy Weaver's rights back in the days of Ruby Ridge in the early mid-'90s.
You have broad bipartisan support in Idaho against the REAL ID Act.
It's because I think both Republicans and Democrats perceive a threat to privacy and Republicans just as much as Democrats in Idaho seem to be concerned that Big Brother can get too much power, particularly with respect to our privacy, our financial records and our medical privacy. So many people, both Democrats and Republicans, recognize the threat of REAL ID and are calling on Idaho to opt out.
Tell me about the ACLU's relationship with Larry Craig.
Larry Craig is one example, and I thought the most recent example of us—and it's not particularly the Idaho ACLU, it's the Minnesota ACLU—aligning ourselves with someone whom we've fought. We've fought him about a number of issues. He hasn't been a leader against gay rights, but he certainly has not been a proponent. He's voted the wrong way, and yet we're defending his right to alleged behavior in the bathroom. Whether or not the allegations are true, we think he had the right to behave in that way.
The ACLU of Idaho has not been that outspoken in defending Larry Craig. Why not?
It's really not our case. I do believe that the prosecution was bogus and it should never have been set up as a trap but rather, if there were stories of sex happening in bathroom stalls, then there should have been warning signs or the like to prevent that, instead of secretly waiting in a bathroom stall hoping to entice somebody to misbehave.
If you know that there's trouble at Sixth and Main on Friday and Saturday night, there are police cars parked out there letting you know that, "Hey, we're here and you better watch yourself."
You have defended skinheads in Idaho and neo-Nazis. Have you personally dealt with skinheads and Nazis as director of the ACLU?
You bet. Somewhere I have a letter from Richard Butler thanking us for our good work. I know it's on the video. There's a five- or 10-minute video that we showed at our 10th anniversary in 2003. We get calls occasionally from extremists, and we got a call from Richard Butler saying he'd been denied his parade permit.
He called you himself?
Yeah, we had to take him seriously and so we did.
That's the price of living in a democracy. You have to defend the rights of people you don't agree with, as well as the rights of people you do agree with, and I think civil libertarians are people who have the confidence that the civilization, the American Way, can prevail and we can survive the mess of ugly speech.
Is that case—defending Butler's right to march in Coeur d'Alene—something you're proud of?
Oh, I feel very proud of that case. I think it was clear the city had gone too far. I think the city knew they were going too far, but they had to appease their constituents. They should have known that they would lose, and they probably did know that they would lose. We have to do that. That's the value of the ACLU.
Richard Butler aside, who are the people who call the ACLU?
We get maybe 10 calls a day. Most of them, we don't take on. I have an intern who reads all the mail. We typically want people to put it in writing, and we follow up. As often as not, it's not an ACLU matter. They complain because they don't know what the ACLU is except that we provide free legal support.
Most of our work doesn't go to court. It's advocacy. We're talking about the relative few that actually present a hard-core civil-liberties problem. Then we follow up and get more facts and ultimately weigh in with the authorities without going to court. Typically, the matter gets resolved without us going to court and that's great, but the sad part is that nobody knows that we're effectual.
So what's that like if you're the mayor or a city council person or the warden and you get a call from Jack Van Valkenburgh?
I first learn from the complainant whether or not we can disclose their identity. If they say "yes, no problem," then I say, "listen I've gotten a call, or more often a letter from somebody claiming that their child is being subjected to distribution of Bibles outside of the school and that school authorities are part of distributing the Bibles. Can you tell me if any of that is true or get back to me?"
The bulk of the issues I handle, the bulk of the complaints we get, are inmates complaining either about their criminal problem, which we don't address, or they might complain about conditions, a matter which we do address: denial of medical care, overcrowding, abuse, discrimination against their religion. Those are probably close to 50 percent of what we get.
Do you have a top case in your 18 years at the ACLU?
I know one of the best works was providing Medicaid funds for low-income women's abortions. We were, in effect, providing real choice to all Idaho women whether they are financially able or not. We won with respect to medically necessary abortions. But at any rate, the Legislature changed the law and that was a disappointment.
The Van Valkenburgh case, that was a great case. The Supreme Court found there was a fundamental right to vote in Idaho. That was the case that I was asked to be lead plaintiff on. We argued that what people had considered to be a term-limits initiative wasn't really about term limits, it was about defacing the ballot, cluttering the ballot with political slogans, and so, in the course of that, the Supreme Court found that there was a fundamental right to vote in our Constitution.
Church-state issues have been really gratifying because people are very appreciative and very thankful when we help them. Fighting the anti-gay initiatives and fighting the anti-abortion things are huge victories for us, were huge victories, but in coalition with other groups.
How is gay rights a civil liberties issue in Idaho?
It's equal rights. It's your right to be treated equally as a couple. There's no doubt that that's a civil-liberties issue. I can better understand, I know this is controversial, but I can better understand somebody being anti-abortion than I can understand them being against equal rights for gays and lesbians. So, fundamentally, it's equal protection, and the U.S. Supreme Court someday will hold it so, but politically, the climate just isn't right.
What's the reputation of Idaho in ACLU circles?
For many years, we were like Utah, one of the most backward states in the nation, and today, we are still in some ways, but we're quieter. We're not flaunting our discrimination the way we used to. It's almost a harder battle to fight because I feel as though the powers that be are more sophisticated and are smarter. They're not promoting anti-gay initiatives now or abortion bans. Now we don't have a strong image or reputation. We haven't made the press but for Larry Craig.
Why do we still see censorship cases in Idaho?
I don't know when we are going to get beyond our Victorian, silly concept of what can be seen and heard in society. I think we're hobbled by our puritanistic notions of sexuality and homosexuality. And so we have these issues like there is in Nampa (Public Library) and public television. I think it's breaking down because the younger generation is a lot more open.
- David R. Frazier
- Protesters at the Capitol in 1993, objecting to police crackdowns on dancer apparel