King of Controversy

The pivotal moment in Von G. Keetch’s legal career happened early, behind closed doors, and he has not been allowed to speak about it in the 23 years since. Yet that emotional debate within the chambers of U.S. Supreme Court Justice Antonin Scalia has guided the trajectory of his life.

Keetch was just two years out of law school and clerking for Scalia when the nation’s top court heard the case of Alfred Smith and Galen Black, members of the Native American church, who had been fired from their jobs as drug counselors for ingesting peyote. The state of Oregon refused to pay unemployment benefits, and the men argued that their First Amendment rights were being abridged. The hallucinogen, they said, was central to their religious observance.

A devout Mormon, Keetch seemed the last person likely to sympathize with drug use. But he saw the 1989 federal debate as pitting religious freedom—“the First Freedom,” he calls it—against governmental interests and making clear which would be victorious. The behind-closed-door arguments were heated, he says, with the final 6-3 decision finding for the government and written by his mentor, Scalia.

“That  case [Employment Division, Department of Human Resources of the State of Oregon, et al. v. Alfred Smith] dealt the heaviest blow to religious liberty of any decision in the last 30 to 40 years, and I’ve sort of spent the rest of my career atoning for that decision of the court,” he says, “trying to help those who feel strongly about asserting their religious liberties to sort of overcome or get around Smith.”

His efforts have led to a position as chief outside counsel to the Church of Jesus Christ of Latter-day Saints and a reputation as one of the most ardent litigators on religious freedom in the nation. At 53, Keetch has defended the Mormon church in everything from land use disputes to sexual abuse charges, and despite his oft-noted good cheer, on nearly every case the Smith decision looms.

“He is the consummate happy warrior,” said Sen. Mike Lee, R-Utah, who was a student of Keetch’s at Brigham Young University Law School and who later clerked for Supreme Court Justice Samuel Alito. “He believes very sincerely in the good that comes from protecting religious freedom. But even when dealing with sobering, somber matters, he’s always smiling. He’s able to disagree without being disagreeable.”

Even Keetch’s opponents concede a grudging admiration for his professorial zeal. But Lee’s description—warrior—is no accident. Opponents of the Mormon church have likened the affable litigator to Star Wars’ Darth Vader and his law firm, Kirton McConkie, to the Death Star.

Lee says, “He’s a man of principle and believes you’ve got to stand behind those principles, especially when they’re not popular.”

Many lawyers might prefer to keep personal views separate from their day jobs, but Keetch proudly uses the law to advocate for his beliefs. Among them: that no court should dictate legal recognition for same-sex marriages; and that the Boy Scouts, as a private group, should be allowed to exclude homosexuals.

“There’s not much discussion about morality, what’s right or wrong in the larger picture. I’m quite concerned about the practice of law because of that,” he says. “The type of clients that I typically tend to represent are not just solely concerned with complying with the lowest level of the law … but also have a strong moral code that they believe in.”

This bent was evident in one of Keetch’s first jobs out of law school, when he clerked for 2nd U.S. Circuit Court of Appeals Judge George C. Pratt and once happily logged a 12-hour day volunteering at Pratt’s house of worship.

“That just seems to be part of the culture of the Mormon church: ‘Here I am. Use me,’” Pratt recalls.

The centrality of a moral code continued to guide much of Keetch’s thinking as he assumed greater duties within the Mormon hierarchy—he helps coordinate some 75,000 people in about 200 congregations—and climbed the legal-career ladder. In 1999, addressing Congress, he pointed out that city zoning codes were often more hostile to churches than to sex shops.

“It is extremely dismaying and somewhat ironic,” he notes, that a city like Forest Hills, Tenn., could not prevent an adult bookstore from opening in certain neighborhoods but was able to zone out a church. “Something is wrong here,” he says, “and it needs to be fixed.”

To some, his views will sound controversial, even extreme. To Keetch, they are as bedrock as the U.S. Constitution. But no legal arena has created as much challenge and controversy as that of child sexual abuse. Here, too, while acknowledging the “horrendous” damage done to victims, Keetch, a father of six, stands firm as a good soldier. He believes the Mormon church should not be held liable if its clergy, all of whom are laymen, fail to report knowledge of child sexual abuse, unless state laws specifically require it.

His reasoning goes like this: Within each Mormon congregation, every adult is assigned to other community members as a home teacher, as an adviser and confidante. None of them, however, are actual employees, so Keetch disputes that the church can be punished for their actions.

“Say you’re an active member of the Democratic Party. You’re not paid by them, but you get assignments to distribute literature and put up signs. Say you’re doing that and commit battery, put your fist into someone’s mouth. We would never think of suing the Democratic Party,” he says. “But we’ve somehow been willing to hold the church liable for anything any member does, even if they’re not in a high position of leadership, and that seems wrong to me.”

The courts have not always agreed. In 2005, a Washington state jury awarded two sisters $4.2 million in a sexual abuse case against the Mormon church after a bishop with knowledge of the abuse failed to report that they were being molested by their stepfather.

Keetch calls the verdict a “miscarriage of justice on the grandest terms.”

Negotiating such territory forces confrontation with the uglier side of humanity. But it also presents fascinating legal puzzles for a scholarly type born to a family of academics and educators. Keetch’s mother, father, wife, sister and brother have all, at one point or another, been public school teachers.

“You wouldn’t believe the lawyer jokes that fly around at family gatherings,” he says. “I’m kind of the black sheep.”

At one point, Keetch thought he might join the family tradition too. A Brigham Young class in constitutional law taught by Rex Lee, former solicitor general in the Reagan administration—and father of Sen. Mike Lee—changed his mind.

“I’ve always loved history, especially American history. And even before I started law school, I was fascinated by the tension that existed between the government’s need to operate efficiently and people’s right to do the things they thought were important, to speak out about issues or follow religious beliefs and act on those beliefs,” Keetch says.

Rather than exploring this interest from the sidelines, as a professor or historian, Keetch chose a far more activist approach to right the wrong he feels Smith represents. Three times he has testified before Congress, and his legal counsel has been sought by Buddhist, Muslim and Hmong congregations on land-use-and-worship issues.

“It is most satisfying when you’re truly helping those who are in the minority,” he says, allowing that in Salt Lake City, Mormons rarely fit that category.

There are times, however, particularly when the convictions of others encroach on LDS church property. In 1999, Keetch had such a case. Outside his office window on a 10-acre park of Mormon-owned fountains and flowerbeds, noisy protestors regularly camped on Main Street Plaza—a block of land that the church had recently purchased for more than $8 million, that still had a public-access easement—chanting slurs.

“‘You are a religion of the devil,’ ‘You’re going to hell,’ that sort of stuff,” Keetch recalls. “Vile and disgusting things.”

New brides emerging from the Mormon Temple to take their wedding photos cringed. But the ACLU insisted that the public had this right. With Keetch at its helm, the legal brawl was considered for a hearing by the U.S. Supreme Court, which ultimately declined, forcing the church either to tolerate objectionable behavior or lay out enough money to purchase the easement.

For roughly $5.3 million in compensation, including land for a community center, paid to Salt Lake City, that is exactly what the Mormons did.

It was yet another example of the issue that dogs Keetch every day: striking the right balance between protecting religious freedoms and preserving the rule of law. Smith sent a clear message: “Religious liberty does not occupy the lofty position that we all thought it had for the century-and-a-half before that,” Keetch acknowledges.

With that in mind, he is frequently asked: Why continue the fight?

Keetch’s answer reveals the engine of belief that has driven his entire career: Religion is “a moral bullet that is inside of us that puts us on our best behavior,” he says. “If we all just believed that there is no higher power, that we’re in this life and when we’re done there’s nothing else out there, then quite quickly morals and integrity and values dissipate. There’s no greater reason to do anything than that you feel like it. And then we’re really only as good as our worst day.”