Appeals court: Judges say the city did not endorse the church by selling the right to public access on the Main Street site
A federal appeals court Monday validated Salt Lake City’s controversial sale of its Main Street Plaza easement to the LDS Church, which turned a former section of historic Main Street into a religious park.
Three judges on the Denver-based 10th U.S. Circuit Court of Appeals ruled the plaza is private property and that the city didn’t endorse the LDS Church by selling off the right to public access.
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“Looked at objectively, the . . . case is one of neutrality and equal access, in which the city does nothing to advance religion, but merely enables the LDS Church to advance itself,” wrote the court.
The ruling is a victory for the city and the LDS Church, which joined to fight the American Civil Liberties Union and four plaintiffs. The ACLU wanted the court to declare the plaza a public sidewalk and allow free speech there – though such a ruling could have led the church to wall off the plaza.
Practically, the decision changes nothing since the LDS Church has been controlling the property since 2003, when the City Council voted to eliminate the easement in an emotionally charged land swap. The church manages it like its other religious property – visitors are welcome but cannot engage in behavior the church finds offensive.
City and church officials expressed relief, though not surprise, at the decision.
Mayor Rocky Anderson – the main architect of the easement sale – declined to comment because he wanted time to digest the ruling. Steven Allred, an attorney who has represented the city in the case, said: “We’re obviously pleased. We hope this puts an end to a very divisive time in the city’s history.”
“It’s time to move forward,” agreed City Council Chairman Dale Lambert.
The LDS Church was happy, too. “The church has always intended that the plaza be a place of peace, a quiet oasis in the midst of a bustling city where everyone can enjoy an atmosphere of serenity and reflection,” Bruce L. Olsen, the church’s managing director of public affairs, said in a statement.
The ACLU didn’t know if it would appeal the decision. Dani Eyer, executive director of the ACLU’s Utah chapter, said she was disappointed.
Lee Siegel, one of the ACLU’s four plaintiffs, called the decision a sad day for the principle of separation of church and state and said it “adds to the feeling that I live in a state run by the American Taliban.”
“Salt Lake City and the church have successfully weaseled themselves to a victory, but it doesn’t make it right,” he said. “I hope they enjoy their lily white, golly gee, clean, fun plaza.”
It was a different mood in 2002, when the 10th Circuit sided with the ACLU against the city and church. After the city sold Main Street between North Temple and South Temple to the church in 1999 and the church created the plaza adjacent to the Salt Lake Temple, the ACLU challenged the plaza’s free-speech restrictions.
The 10th Circuit ruled three years later that the restrictions were unconstitutional because the city retained an easement guaranteeing pedestrians a right to walk through the plaza.
That ruling said the city had to either allow speech on the plaza or eliminate the easement. For a time, protesters shared space with LDS temple-goers on the plaza, until the city sold the easement in 2003.
Nevertheless, the ACLU said the city, by selling the easement, violated the U.S. Constitution’s right to free speech and its ban on government endorsement of religion. On Monday, the 10th Circuit rejected all of the ACLU’s claims.
The court noted the plaza might function as a public sidewalk, but the church no longer is obligated to keep it open to the public without the easement.
“The asserted purpose of the plaza, unlike that of a normal sidewalk or other public forum, is to act as an ecclesiastical park,” said the court.
But church and city officials initially pitched the plaza as a public amenity, a “little bit of Paris” meant to enhance downtown pedestrian access.
The ACLU’s other main argument was that the sale was a sham transaction meant to further the beliefs of the LDS Church. The court called that a “most curious allegation” since the first Main Street Plaza ruling suggested the sale.
The judges also said the sale was “reasonable” because the city received $5 million for an easement valued at $500,000. The millions will build a center in the west-side community of Glendale.
“I would hope that with this ruling it would put an end to any concerns and controversy,” said Pamela Atkinson, a member of the Alliance for Unity, which helped broker the easement sale by raising money for the center. “The Unity Center is going to be a place of healing for many reasons. We need to start healing any doubts that it was the right thing to do.”
While the ACLU pointed to Anderson’s turnabout regarding the easement as a product of undue pressure by the LDS Church – the mayor initially said he wouldn’t sell the easement and then changed his mind after the church waged a major public-relations campaign – the court disagreed.
“The fact that the mayor changed his mind by first vocally opposing the sale of the easement and later supporting it or that this issue was controversial simply does not support the claim that the transaction was a sham,” said the ruling.
Plaza-goers praised the decision Monday.
“Protesters have their rights,” said Dawn Carlton, visiting from Rexburg, Idaho, with her husband and son. “I respect the fact that they have their own beliefs and want to share them, but there’s a time and a place – and this isn’t it.”
Salt Lake City’s payoff
In selling the Main Street Plaza easement to the LDS Church, Salt Lake City received land and $4.5 million to build a community center in Glendale. The Sorenson Unity Center was supposed to open by January, but is has been delayed for nine months. In 2003, the city also pledged to run it without taxpayer subsidy, but has struggled to find operating partners. The city now expects to subsidize the center at almost $131,000 a year.
What the decision means
The status quo remains. Protesters are out and LDS Church control of speech, behavior is in.
That means no smoking no illegal, offensive, indecent, obscene, lewd or disorderly speech, dress or conduct.
Proselytizing is forbidden, too, unless it’s done by the property owner, the LDS Church.
The American Civil Liberties Union hasn’t decided whether it will appeal Monday’s court ruling.
Tribune reporter Cathy McKitrick contributed to this story.
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