On Wednesday, the Main Street Plaza dispute returns to the courtroom that brought Salt Lake City to a standstill three years ago.
In 2002, the Denver-based 10th Circuit Court of Appeals ruled that protesters, preachers, pamphleteers and others could express themselves on the LDS Church‘s plaza between North Temple and South Temple, setting off months of rancorous debate about the state’s most tangible symbol of church-state entanglement.
A panel of three 10th Circuit judges will hear Round 2 of the case Wednesday morning on whether the city sold its public rights on the plaza to help the church discriminate against people who express views different than the church’s, as alleged by the American Civil Liberties Union.
At stake in the judges’ eventual ruling: The plaza could remain as is, an extension of Temple Square where people are welcome as long as they abide by church restrictions, or it could return to a place where free speech is fair game.
The national office of the ACLU, which took over the case from the Utah chapter and sued on behalf of five Utah plaintiffs, hopes for the latter.
“This should be public property,” said Mark Lopez, the ACLU’s New York-based lead attorney on the case. “What I’m afraid we’ll see is they’ll throw fences up around it. That’s a sad day for everyone.”
Lopez said the ramifications could extend beyond Salt Lake City. “There’s an increasing trend to deal with constitutional problems that occur on public spaces by simply closing the property to everyone or conveying it [to a private entity].”
The National League of Cities, National Association of Counties, the U.S. Conference of Mayors and the International Municipal Lawyers Association also are interested, but they stand with Salt Lake City.
And the city – along with the LDS Church, which added itself to the case – is standing behind a lower-court ruling by U.S. District Judge Dale Kimball, who rejected each of the ACLU’s First Amendment arguments. The judge noted that even if the city sold its public-access easement to pacify the church, the city gained secular benefits – $5.4 million in land and cash to build a west-side community center near the Sorenson Multi-Cultural Center.
“We’ll present that Judge Kimball was right in every respect and hope they affirm that,” said Steve Allred, who will argue the case for the city.
Salt Lake City attorney Alan Sullivan, who will represent the church at Wednesday’s hearing, would not comment on the case.
The first 10th Circuit ruling could figure prominently in this week’s hearing. The city has argued that it was doing what the court suggested when it sold the easement. The court had said the city must either protect speech on the plaza or eliminate the easement.