News
October 10, 2002 - The Salt Lake Tribune
By Rebecca Walsh
Court Rejects LDS Plaza Rules

Three judges in Denver voided free-speech restrictions on the LDS Church's Main Street Plaza on Wednesday, reopening the one-block stretch of Salt Lake City's most historic street to sunbathers, pamphleteers and smokers. In many ways, the judges also laid bare old wounds and suspicions between Mormons and non-Mormons. City and church leaders who started the legal battle that found its way to the 10th U.S. Circuit Court of Appeals still are trying to figure out how to comply with the judges' decision -- and the U.S. Constitution -- without plunging the city into the same tangle that consumed residents four years ago.

"The city may not take action that runs afoul of our first and primary amendment," the judges wrote. "Our country's dedication to both free expression and [separation of church and state] are among its greatest heritages, and our fealty to the concept of a marketplace of ideas in religion as well as other fields has been the hallmark of our society." The full ruling (PDF): Part 1, Part 2 The three-judge panel reversed U.S. District Court Judge Ted Stewart and ordered him to dismiss the claims of Salt Lake City and The Church of Jesus Christ of Latter-day Saints in favor of the American Civil Liberties Union. Despite the judges' strong language, the 40-page ruling may not end a bitter, 3-year-old court fight over problematic rules for behavior on Main Street between North Temple and South Temple. The church owns the plaza but the city maintains a 24-hour public easement across it.

LDS Church attorneys are mulling over their options, and so are Salt Lake City leaders. The church and city could appeal to the full panel of 10th Circuit judges or the U.S. Supreme Court. Or the city could sell the easement to the church, essentially ending the debate over free speech and turning Temple Square into "Temple Rectangle." But Wednesday, the church only issued a brief, two-sentence statement: "The church is studying the ruling very carefully. All the implications and options will be evaluated over the next few days." Mayor Rocky Anderson held a news conference. Unusually cautious and subdued, Anderson says the city probably will not join the church in an appeal. And he will not sell the easement to the church -- that would be a "betrayal." (In city government, the power to buy and sell property rests with the mayor.) "I'm not happy about it, because a deal was entered into in good faith between two parties and one of those parties didn't get what they bargained for," Anderson said. "It would have been far better for the parties to understand the constitutional prohibitions against what they tried to accomplish."

The LDS Church, former Mayor Deedee Corradini and City Council members who approved the sale should have known they were taking a risk, he said. "Anytime a governmental entity owns an easement, a street or sidewalk that is a traditional public forum, any restrictions that go beyond time, place and manner restrictions would be prohibited under the First Amendment." For now, the plaza's paths are like any other city sidewalk. The mayor says he will consult with City Council members and church attorneys to write constitutional, "time, place and manner" restrictions on plaza protests as allowed by the U.S. Supreme Court. ACLU Attorney Stephen Clark hopes the city and church let the contentious matter drop and accept that the plaza sidewalks are public forums. "To some extent, this whole thing was about giving the church a protected platform to project its own views and to deny anyone else the right to equally express their ideas," Clark said. "I would hope the Mormon church would have enough confidence in their ideas to accept this decision and create, in addition to 'a little bit of Paris,' a little bit of Hyde Park in downtown Salt Lake City so all viewpoints are heard."

Nearly four years ago, Corradini and LDS Church President Gordon B. Hinckley announced the deal. And in April 1999, City Council members sealed it, selling the block of Main Street to the church for $8.1 million. They reserved the easement, but limited it with a laundry list of rules drafted by church and city attorneys: no smoking, sunbathing, bicycling or "engaging in any illegal, offensive, indecent, obscene, lewd or disorderly speech, dress or conduct." At the same time, the city granted the church the exclusive right to broadcast speeches and music and distribute literature. Church security guards would determine what was "offensive" and call city police to enforce the rules. The ACLU challenged the restrictions on behalf of the First Unitarian Church, National Organization for Women and Utahns for Fairness, arguing the easement violated the First, Fifth and 14th Amendments.

In January 2001, Stewart -- who is a member of the LDS Church -- threw out the ACLU lawsuit, determining that the 2-acre patch of asphalt had been turned into a private religious garden incompatible with noisy protests. He ruled that the restrictions were "reasonable." The Denver judges disagreed with every one of Stewart's conclusions. The judges noted changes in the way church and city officials explained the plaza at the time of the sale -- as a "pedestrian plaza," a "little bit of Paris" that would "enhance the urban fabric of the downtown area" -- and the private religious retreat they described at an appeal hearing three years later. Church and city attorneys' claims that the plaza sidewalks are used mostly by church employees and tourists headed to and from the Joseph Smith Memorial Building or Temple Square were similarly brushed off. And they dismissed city and church arguments that the city property is now private and therefore not a public forum subject to protests. "We are convinced the city has attempted to change the forum's status without bearing the attendant costs, by retaining the pedestrian easement but eliminating the speech previously permitted on the same property," the judges wrote. "In effect, the city wants to have its cake and eat it too, but it cannot do so under the First Amendment. "We remind the city that the first Amendment is a limitation on government, not a grant of power." Plaintiffs in the case have waited a long time for vindication.

The Rev. Tom Goldsmith, from First Unitarian Church, tried to strike a conciliatory tone. "We need to get away from winners and losers in this," he said. "All of Salt Lake City has won its First Amendment rights. It's a wakeup call that the United States is fundamentally a democracy where diverse ideas meet on common ground. And Salt Lake City is no different." Goldsmith said he hopes that rather than fight on, church leaders "take an opportunity for healing between Mormons and non-Mormons. The dominance of the LDS Church is indisputable. This is a chance for the church to be gracious with its neighbors and honor the fact that the First Amendment applies universally. I see it as a new beginning." But plaza visitors soaking up the last fall rays Wednesday were disappointed at the news. Phyliss Thomson of Pleasant Grove waited on the plaza with her grandchildren while a friend finished shopping at the mall. "One of the reasons I came over here was to get away from the half-dressed kids and all the stuff that goes on at the mall," she said. "I guess if it changes, it changes. I'll be sad to see it go." One man is eager to test the ruling: Southern Baptist minister Kurt Van Gorden of Victorville, Calif., will drive all night to arrive in Salt Lake City bright and early today, ready to pass out literature on the plaza. Arrested in April for doing the same thing, Van Gorden is giddy to try again -- this time with the strength of federal judges behind him. The city prosecutor dismissed the charges against Van Gorden. But he has been smarting ever since. He has walked through the plaza seven more times with literature. And he protested church security guards' treatment of his missionaries at a City Council meeting last month. "This is important to us," he said. "I'm elated that our constitutional rights have been upheld by the court." walsh@sltrib.com

Tribune reporters Heather May and Lori Buttars contributed to this story.