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People can change, but institutions seem to change only because of those who run them—not by those subject to them. In the ’60s, BYU’s honor code was finally coming into formation as an office regulating behavior, thanks to University President Ernest Wilkinson. With outrage over the Vietnam War leading to campus protests across the country Wilkinson was determined to make BYU an “island of calm” during a turbulent time.
Wilkinson explained just how he would do this in a 1965 address to the student body, where he proclaimed, “We do not want on our campus any beetles, beatniks or buzzards. We have, on this campus, scientists who are specialists in the control of insects. Usually, we use chemical or biological means to experiment on them. But often we just step on them. [For] students, we usually send them to the dean of students for the same kind of treatment.”
Can BYU be Sued?
Joseph Lambson, a St. Louis attorney contacted by Kovalenko’s boyfriend to consider the case, says that it is possible to sue a private religious institution, but not easy.
Thanks to the 2003 Supreme Court case Lawrence v. Texas, homosexual acts are protected by the First and 14th amendments of the Constitution. Lambson also points out that those institutions that accept federal money are subject to action for violating constitutional rights. One possible avenue for suit against BYU, among several, Lambson says, is under the Higher Education Act—contained in 20 U.S.C. 1011(a)—as BYU's policy arguably violated Kovalenko's protected right to freedom of association, which is forbidden under the Act. However, the obstacle in suing under this section is that the only entity with standing to bring suit under the provisions of the Act is the Secretary of Education.
“One other possible avenue would be not simply to get the Secretary of Education to file a suit, but to get the IRS to look at unexempting [BYU’s] 501(c)(3), to revoke their tax-exempt status.”
In 1983, the IRS successfully revoked the tax-exempt status of Bob Jones University, a religious school that denied admission to students in an interracial marriage. The IRS determined the institution’s mission was contrary to good public policy that guided the creation of 501(c)(3) nonprofits.
Still, Lambson says the momentum behind the gay-rights movement is picking up in comparison to the rights already afforded individuals based on race. With time and further pressure from individuals, though, the tide can turn, he says.
“The day might not be far off,” Lambson says. “Today is not the day where sexual orientation is seen as being on par legally with race, but there’s a very strong and growing movement, [and] I think it will get there. You’re going to see some drastic changes soon, even with private religious schools.”
According to The Lord’s University—a book on the history of academic freedom at BYU, written by Bryan Waterman and Brian Kagle, a former editor of BYU’s Student Review magazine and a former editor of student newspaper the Daily Universe, respectively—Wilkinson, at the time, had just returned to his position after failing his bid for the Senate bid. Wilkinson had also received a special blessing from then-prophet of the LDS Church David O. McKay to protect the faithful against the evils of communism. Wilkinson returned to his beloved school with renewed fervor to root out undesirable students. His claim to fame was specifically targeting radicals and activists, but also instigating a war for the sake of modesty against the miniskirt.
While Wilkinson was openly hostile to the idea of gay students on campus, it wasn’t until after his term ended in the ’70s that school presidents made rooting out homosexuals a priority, at times even tasking campus police with noting license plate numbers at gay bars and then cross referencing those numbers with student and teacher records.
Those who have gone to BYU in the years before and after the church’s involvement in the repeal of California’s gay marriage laws feel BYU has exercised a similar political agenda with its students.
Ashley Sanders, a Salt Lake City native, went to BYU as an activist, where she organized protests against the honor code and its treatment of gay students, the invasion of Iraq and even the university’s decision to host then-Vice President Dick Cheney as the 2007 commencement speaker. She says the honor code was used as a threat to censor protests against conservative issues.
“College is a time when people start going places that push the boundaries of whatever they’ve been told,” she says. “Its cliché, but it’s true. So, they really have to regulate [students’] lifestyles so they don’t encourage the kind of thinking that would threaten the church’s power structures and the school’s power structures.”
The strongest tool Sanders says BYU has for protecting itself and controlling students is the surveillance culture that the honor code creates. Since students can be in violation of the code if they don’t “encourage” other students to keep the code, Sanders says students never know who might be watching.
“You never know when they’re surveilling you, so what happens is, people surveilled themselves more ferociously and effectively than they ever would even if [BYU] had armed guards [enforcing the code].”
In 2007, as the editor of a student magazine, The Collegiate Post, Sanders decided to write a lengthy editorial lambasting the honor code for being a tool of enforcing political ideology. Shortly after the article ran, the magazine’s funding was cut and shut down. Not long after, Sanders left BYU with her diploma, and she soon also left the church. Having never been sanctioned by the office herself, she still felt suffocated under the honor code.
“I genuinely felt like I went insane at BYU,” she says. Despite feeling like a good person in search of the truth, she felt BYU stood in the way of that search. “It’s really not about [finding] the truth,” she says of the code. “It’s about hitting a boundary and bouncing back to the inside.” This code-enforced formula for honor, Sanders says, was ultimately “too demoralizing and frustrating and hypocritical for me.”
“It’s not about not cheating on your tests—it’s about controlling the production of the next generation of Mormons.”
People can change, even if some parts of them don’t. Kovalenko, looking back, doesn’t regret going to BYU or the fact that, despite friends, teachers and even local religious leaders advising him to lie to BYU, he told the truth—especially since he had talked about his boyfriend with his bishop and had even taken him to church with him.
Kovalenko’s own music has been enriched by his experience. New opportunities have arisen for him: He currently is using, on loan, a $400,000 Pressenda violin, an old Italian instrument made in 1834, the year after Brahms was born.
Brahms’ Violin Concerto in D major, Op. 77, the only concerto Brahms composed for violin, is dear to Kovalenko. “It’s just the most bad-ass, epic, passionate piece—it has tremendous range.” It’s a piece Kovalenko’s worked on his whole life, and one that he even performed for the BYU Philharmonic.
“You have a piece, and you perform it, it becomes a part of you. It’s like you tell your own story with the music,” he says. The story he tells now, with the same notes and composition as it was written in 1878, has deepened tremendously for Kovalenko. “It’s almost like I came back around full circle with this piece of music,” he says. “I’m twice the musician I was two years ago.”
While Kovalenko is no longer a member of the LDS Church, he still has strong roots in the culture. He marvels at the Book of Mormon, and would rank Joseph Smith as one of the top two figures he would love to meet, maybe even more so than Leonardo da Vinci. Despite these ties to the culture of his former faith, he will continue to speak out against BYU’s Honor Code, for the process that he will never forget—but can forgive.
“I don’t think we as human beings, Americans, Utahns or whatever—I don’t think in any micro- or macrocosm can we afford to be divided when we can be unified.”
Photos By Chad Kirkland