Photo courtesy of Utah Legal Clinic
Brian Barnard stood before a group of atheists earlier this year to celebrate their hard-fought legal triumph over the state of Utah. The state, backed by the Utah Highway Patrol Association, had been erecting 12-foot-high steel crosses on public land near highways to memorialize sites where troopers had died in the line of duty.
Barnard's atheist clients felt the 14 crosses, adorned with a UHP emblem, were a symbol of Christianity and violated the separation of church and state established in the U.S. Constitution.
Before the seven-year court battle was over, the state's position that the crosses were a generic symbol of respect was upheld by U.S. District Judge David Sam, only to be overturned on appeal to U.S. 10th Circuit Court of Appeals. The state invested—civil libertarians would say "wasted"—more money to appeal the case to the U.S. Supreme Court, which declined to hear it. By spring 2012, the crosses on public land came down.
Barnard, a soft-spoken man known to his clients and opponents alike for his civility, allowed himself a moment of brio: "What I enjoyed about this litigation is that [Utah Attorney General] Mark Shurtleff said I was wrong. U.S. District Judge Sam said I was wrong. The 10th Circuit said I was right. The Supreme Court said they weren't going to weigh in on it. So we won ... We were able to teach Mark Shurtleff a lesson [on the Constitution] and now we get to make an application for [$300,000 in] attorneys' fees."
Then mischievously, Barnard added, "I want to thank each and everyone of you as taxpayers of the state of Utah for your contribution."
The atheists howled their approval. Barnard, 67, who died unexpectedly in his sleep in September, to many Utahns was the only person they could turn to for justice when their civil rights were violated. He clashed with government at all levels in his 40-year career as the champion of the underdog, the outsider and the unloved in a state that often values conformity over diversity. He joked that his legal fees were "tuition" for his opponents.
"Brian used to say, 'We can send them a letter and let them know that what they are doing is unconstitutional,'" says Stewart Gollan, managing attorney at the Utah Legal Clinic founded by Barnard. "'If they don't listen, we will have to educate them. But then they'll have to pay my tuition.'"
With Barnard gone, the question in the legal community is: Who will replace him as Utah's lion of civil liberties?
Barnard took on the cases of political protestors, animal rights activists and women who wanted admittance to Salt Lake's foremost men's club, American Indian tribes, liquor merchants and even panhandlers.
"He didn't just nght for the rights of non-religious people, but for civil rights in general. He was a champion for all," says Dan Ellis, president of the Atheists of Utah. "I'm hoping someone steps up, but those are huge shoes to fiIl."
Says Marina Lowe, legislative and policy counsel for the American Civil Liberties Union of Utah, "Brian consistently stood up and took on difficult cases. His name is synonymous with civil rights in the state of Utah. Utah is in a worse position for his not being here."
One of the difficulties of replacing Barnard is that the former Los Angeles native and Loyola Law School graduate brought a unique set of skills to defending the rights of the less desirable. For one thing, he could argue emotional and unpopular points of view-that crosses should not be on public land or that a city can't pay for illuminating a beloved
religious site—in a calm, reasoned way that concealed a stubborn persistence.
"His style was to litigate aggressively, yet be reasonable if you could come to some sort of resolution," says Gollan, who apprenticed under Barnard. "Brian was a very soft-spoken man in his dealings, but would not let himself be intimidated and was scared of no one in the courtroom."
Gollan says Barnard delighted in the title "legal gadfly," bestowed upon him by the alternative newspaper Salt Lake City Weekly. Yet, "He was able to be a very aggressive, formidable litigator without being uncivil or unkind to anyone."
Barnard was also exceptionally deft and patient in explaining legal complexities to his clients and—even more important in civil rights cases—to the news media.
"The first person reporters would go to when a case was filed was Brian," says Karen McCreary, the executive director of the ACLU of Utah." He would boil it down to that sentence or two that would help educate people on constitutional issues."
But a civil rights lawyer battling government attorneys case after case for four decades needs more than money to keep going—a passion for the law or a streak of maverick, perhaps. Barnard had both.
"He liked being the guy who stood up for the little person," says Lowe.
The obvious heir apparent to Barnard is Gollan, who has worked as Barnard's associate on dozens of cases. Gollan shares his mentor's soft-spoken legal literacy, but admits he is less experienced in the media performance art that Barnard brought to high-profile civil rights litigation.
"This work needs to continue being done, whether it is by me personally or by other civil liberties organizations," Gollan says. "Brian built something that was larger than himself."
McCreary at the ACLU says it takes a rare kind of lawyer. "People today don't have an understanding that each person matters. The community is enhanced when everyone has rights that are protected by all of us. Brian was like a force of nature. It's hard to think of him gone. He left such a legacy."
BRIAN BARNARD'S GREATEST HITS
Wins case forcing the exclusive Alta Club in downtown Salt Lake City to accept women.
Forces City of St. George to end its 44-year practice of paying the electric bill for illuminating The Church of Jesus Christ of Latter-day Saints' temple.
Salt Lake-based Summum religion argues that their faith's Seven Aphorisms should have the same right of placement in a Pleasant Grove public park as the Ten Commandments. The U.S. Supreme Court ruled in favor of the city's right to limit religious displays. Barnard took the case back to lower courts, where his associates will argue the city violates the separation of church and state doctrine in the Utah Constitution. The case will be heard by the Utah Supreme Court.
With John Pace, Barnard settles an 18-year fight between the state and the Navajo Tribe over unpaid oil drilling royalties of $33 million.
Barnard, representing the Atheists of Utah, successfully argues that memorial crosses for fallen Highway Patrol troopers violate Constitutional separation of church and state.
Courts find Utah's panhandling law a violation of freedom of speech. Some municipalities nevertheless continue to enforce the law, and Barnard's Utah Legal Clinic again filed suit against American Fork in September 2012.