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Main Street Plaza: The ACLU of Utah History

03fall 1Because of the interest in the Main Street Plaza cases, we have created this page to collect all of our information in an easy to view format. Updated December 2005.

Synopsis
ACLU Returns to Court Over Salt Lake City’s “Main Street Plaza”
How We Got Here: The Main Street Plaza Timeline
Press Releases
Letters written to Salt Lake City
Documents Filed in Court
Reports and Articles written by the ACLU
ACLU of Utah Protects Freedom of Religion for Everyone

In April 1999, the Salt Lake City Council voted 5-2 to sell the downtown block of Main Street between North and South Temple to the Church of Jesus Christ of Latter-day Saints. Unbeknownst to city residents, it also sold the public’s First Amendment rights, immediately transforming the block into a space in which the LDS Church was granted the absolute and exclusive right to broadcast its own messages and, at the same time, ban all other viewpoints.

The Salt Lake City Planning Commission approved the transaction with the condition that the space be regulated like a public park. However, the final documents included a public easement in which the city gave the LDS Church unbridled discretion to prohibit, among other things, “loitering, assembling, … demonstrating, picketing, distributing literature, … erecting signs or displays, using loudspeakers or other devices to project music, sound or spoken messages, engaging in any … offensive, indecent, … lewd or disorderly speech, dress or conduct …” on Main Street. Importantly, these prohibitions applied only to members of the public. Under the conditions of the sale, the LDS Church could make exclusive use of the property for expressive purposes, “including, without limitation, the distribution of literature, the erection of signs and displays by [the LDS Church], and the projection of music and spoken messages by [the LDS Church]." Such one-sided restrictions violate both the free speech and the Establishment Clause of the First Amendment.

Also, by granting the LDS Church absolute control over the views expressed and the nature of the conduct permitted on the property, the city delegated some of its governmental powers to a church. After all, it would be church security and not the Salt Lake City Police Department who would determine when a visitor had violated the terms of the easement and impose punishment for that violation. Even if an easement were drafted with conditions consistent with a traditional public forum, the First Amendment’s demand for the strict separation of church and state does not allow the city to grant this traditional state function to a church.

In a lawsuit filed in November 1999 on behalf of the First Unitarian Church, Utahns for Fairness, and the Utah National Organization for Women, the ACLU of Utah argued that because of Main Street’s unique role in Salt Lake City’s history and its ongoing use as a public thoroughfare, it continues to be a public forum. In November 2000, we filed a motion for partial summary judgment.

In January 2001, U.S. District Judge Ted Stewart dismissed all of our claims, concluding that the city’s sale of Main Street and the LDS Church’s transformation of the street into a restricted religious plaza did not violate the plaintiffs’ free speech rights, the establishment clause, or the Fourteenth Amendment’s equal protection clause. On August 13, 2001, we filed an appeal with the Tenth Circuit Court of Appeals in which we asked that body to review the constitutionality of the plaza restrictions. We filed our reply brief on November 9, 2001, and on March 18, 2002, the court heard oral arguments. On October 9, 2002, the Tenth Circuit issued a ruling reversing the district court decision and declaring the Main Street Plaza sidewalks a public forum.

In June 2003, the Salt Lake City Council set in motion a second lawsuit involving the public’s First Amendment rights on the Main Street Plaza when it voted 6-0 to swap the plaza’s public easement for land owned by the Church of Jesus Christ of Latter-day Saints on the west side of town and funds to create a new community center. The vote came seven months after the Tenth Circuit Court of Appeals ruled on the ACLU of Utah’s first Main Street case, holding that the easement was a public forum with the accompanying First Amendment rights, and that any viewpoint-based restrictions associated with the easement were unconstitutional. Since the Tenth Circuit’s ruling, city leaders struggled to find a way to both appease the desires of the LDS Church to control expression on the plaza and to honor the community’s expectation that the plaza would remain a public forum. Unfortunately, the city chose to protect the church’s religious use of the property and to prevent anyone with viewpoints other than those endorsed by the church to express them on what used to be downtown Main Street.

In August 2003, the ACLU of Utah and the national ACLU filed a lawsuit (see our final amended complaint filed December 2003) asking the federal court to examine everything surrounding the exchange of the public easement to determine whether the city set aside its long-stated and valid public policy for pedestrian access and passage through the Main Street Plaza in order to accommodate the LDS Church’s desire to impose discriminatory restrictions on speech expressed on that property. The brief maintained that the city’s action violated the free speech rights of its citizens and represented an unconstitutional endorsement of the LDS Church. In May 2004, the Utah Federal Court dismissed the case, and that same month, we appealed to the Tenth Circuit Court of Appeals (see the amended brief we filed in September 2004). In an October 3, 2005 decision, the Tenth Circuit dismissed all of our claims, ruling that the Main Street Plaza is no longer a public forum and that the city’s decision to sell the easement did not violate the Establishment Clause. Unfortunately for Salt Lake City residents, this decision may precipitate the loss of a central public forum of the type that was held in high esteem by our country’s founders who valued, rather than stifled, diverse viewpoints.

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ACLU Returns to Court in Controversy Over Free Speech in Salt Lake City’s “Main Street Plaza”

On August 7, 2003, the ACLU of Utah returned to court in the controversy over the LDS Church’s ability to restrict free speech rights on the Main Street Plaza, maintaining that City officials have failed to respect the federal court ruling that the plaza is a public forum. The action was filed together with national ACLU. Salt Lake City is the defendant. “The City cannot simply decide that it is too much trouble to perform its basic governmental duty to regulate competing uses on a significant downtown pedestrian passage and public place,” states Dani Eyer, executive director of the ACLU of Utah. Rather than assume its obligation to regulate this space, the City acquiesced to the demands of the Church and created a powerful platform for the Church to promulgate its message on a range of social, political and religious issues while prohibiting others from sharing their own messages on the same issues in the same place and in the same manner.

The plaza, where Main Street, Salt Lake City and LDS Church headquarters join, is the literal and symbolic intersection of church and state in Utah. In 1999 the City sold a block of Main Street to the Church. Because all public policy statements and documents had emphasized the need for pedestrian traffic on this downtown grid, the City retained an easement for public passage and access. The Church placed restrictions on speech and behavior on the plaza. The ACLU repeatedly warned that the restrictions were not consistent with the Constitution. Eventually the Tenth Circuit Court of Appeals ruled that the easement was a public forum with attendant First Amendment speech rights and struck down the Church’s restrictions. The Church appealed to the U.S. Supreme Court, which refused to review the case. For the last year the City has struggled to find a solution to appease the desires of the Church to control expression on the plaza while honoring the community’s expectation of public use. After drafting rules attempting to regulate use of the plaza with the traditional tools controlling the time of speech, the place of speech and the manner of speech (time, place, manner regulations), the City learned that the LDS church was not interested in any kind of compromise, even one confining the easement to one narrow section furthest from religious buildings.

The City then proposed swapping the downtown public forum for church owned land and financial contributions on the west side of town. On June 10, 2003 the City Council voted in favor of this resolution and the deal was finalized on June 28.

In our current (second) lawsuit the ACLU is asking the federal court to look at everything surrounding the transaction to determine whether valid public policies were set aside by the City in order to accommodate the LDS Church’s desire to discriminate against people giving expression to ideas inconsistent with the ideas of the Church.

“The bottom line,” the lawsuit claims, “is that city residents and visitors alike will continue to pass through the Plaza and be ‘funneled’ to the City’s central commercial and shopping district, but as they do so they will be subjected to the LDS Church’s point of view without the ability to respond with views of their own, at the risk of being jailed for ‘trespass.’”

Mark Lopez, the ACLU national staff attorney who has worked with the ACLU of Utah on both Main Street cases, said, “When government shows a preference for one religion it sends a chilling message to non-adherents that they are outsiders, and not full members of the community.”

The ACLU’s clients in the current legal action include two religious organizations -- the Utah Gospel Mission and the First Unitarian Church; two social activist organizations -- Shundahai Network and NOW of Utah; and an individual -- Lee J. Siegel.

The First Unitarians, plaintiffs in the first lawsuit, held a Special Congregational Meeting and voted overwhelmingly to participate in the second suit. Even though the congregation is uncomfortable when it is confused with the street preachers whose behavior on the Plaza has been a great source of controversy, the Unitarians noted that participation in civil rights issues is not new to them, and that it takes courage to stand up for the rights of all. The Unitarians said that they want to defend free speech for all, stand up for those even more disenfranchised, and participate on equal footing with all religions and citizens in the community.

This lawsuit is important for all citizens because in our car-oriented society there are fewer places for traditional public expression, a hallmark of our democracy, and courts are increasingly finding that we cannot relinquish downtown public property for almost any reason. Further, courts rule that the government cannot transfer public property to private entities for the purpose of circumventing constitutional mandates, as was attempted in the Civil Rights era in the South. Courts also look upon the transfer of public property to religious institutions with careful scrutiny, making sure that valid public policy is not set aside, and certainly not for the purpose of aiding discrimination against expression that is critical of one dominant religion.

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How We Got Here: The Main Street Plaza Timeline

December 1998: SLC Mayor Corradini and LDS Church President announce proposal for City to sell one block of downtown Main Street for creation of Main Street Plaza.

February 4, 1999: City report prepared for the first Planning Commission hearing stated: "A perpetual easement for 24-hour public access must be retained by the City from North Temple to South Temple within the existing street right-of-way. The easement should be designed and improved so as to maintain, encourage and invite public use."

March 4, 1999: Public easement requirement was very first condition to the Planning Commission’s recommendation that City Council approve sale of Main Street. Planning Commission recommends that City Council approve sale of Main Street to LDS Church on condition that “there be no restrictions on the use of this space that are more restrictive than is currently permitted at a public park.”

April 5, 1999: Closed meeting between LDS Church and SLC attorney where church states it must control activities. City begins to draft language acquiescing to church.

April 9, 1999: SLC attorneys give memo to City Council with draft reservation of the public easement for passage and access by pedestrians and street closure, stating to public that it was “consistent with the concept approved by the Planning Commission” that the space be regulated like a public park.

April 13, 1999: At City Council public hearing, no one from City attorneys draws attention to disappearance of the Planning Commission’s Condition 15 that “there be no restrictions on the use of this space that are more restrictive than is currently permitted at a public park.” During public comment a citizen-member of Planning Commission notes’the petition before you is not the same petition that was approved by the Planning commission.”
Council votes 5-2 to sell Main Street to LDS Church.

April 27, 1999: Mayor Corradini signs Special Warranty Deed, which provides for (1) City’s retention of easement and (2) extensive restrictions on conduct. Severablilty Clause states that if portion found to be unconstitutional, remaining portions are binding.

May 5, 1999: ACLU sends letter to City requesting “that the City address at once a specific aspect of the transaction that plainly violates the United States Constitution, so that litigation can be avoided.” Explains nature of traditional public forum and effect the restrictions will have on the community.

May 17, 1999: City letter to ACLU explaining that City has the authority to close or sell a public street.

May 26, 1999: ACLU letter to City explains that city cannot skirt constitution by “declarative fiat.” With five pages of references and case law, letter warns they must deal with “these difficult issues; they will not go away by themselves.” Stephen Clark, ACLU Legal Director, further writes “I am willing to sit down with you…at a mutually convenient time to discuss the issues as well as the City’s and the LDS Church’s interests and concerns. Our collective goal should be to see whether a set of reasonable, constitutionally permissible, neutral regulations can be identified…we sincerely hope we will not be forced to resort instead to litigation.”

November 16, 1999: ACLU files lawsuit against City for allowing LDS church to impose unconstitutional restrictions.

January 2000: LDS Church intervenes into lawsuit as additional defendant.

January 2, 2001: Federal court, District of Utah, rules in favor of City and Church.

August 13, 2001: ACLU appeals Judge Stewart’s decision to Tenth Circuit.

October 9, 2002: Tenth Circuit Court of Appeals reverses lower court and rules that public easement is traditional public forum compelling
First Amendment rights, and restrictions are unconstitutional. Court states that LDS church has no right to be free from competition or criticism.

October 2002: Mayor Anderson vows that easement would not be transferred to Church.

October 18, 2002: Letter to City from ACLU suggests “time, place and manner” regulations which can constitutionally control activity “accommodating competing uses of the easement, controlling the level and times of noise” and reminding that “the City may take the interests of the surrounding property owners into account in enacting regulations.”

October 18, 2002: Anderson says easement not as important as guarantee of public access.

October 24, 2002: LDS Church seeks Tenth Circuit rehearing; denied on November 14, 2002.

November 1, 2002: Church urges Mayor to give up easement.

November 10, 2002: Deseret News poll shows 64% of LDS Utahns say City should give up easement, while 73% belonging to another or no religion say city should keep public easement. Main Street Plaza moves beyond literal intersection of LDS Church headquarters and downtown Main Street to symbol of cultural and religious divide in community.

November 16, 2002: Church disseminates expensive folder with full-page color inserts and letter from President Hinckley regarding “The New Church Plaza” to thousands of business and citizens.

December 6, 2002: Mayor Anderson announces proposal to define easement narrowly to sidewalk on one side away from LDS Temple activity, imposing “time, place, and manner restrictions.” Proposal touted as giving Church 90% of its desires on plaza.

December 16, 2002: Mayor Anderson, supported by the Alliance for Unity, proposes exchanging easement for land on the west side of City and fund for creating community center.

December 17, 2002: ACLU delivers letter to City Council and calls for revising definition of demonstrations to meet Constitutional standards. Also warns that the city cannot abandon its consistently stated public policy to reserve public passage and access on plaza: “the Tenth Circuit observed that ‘the City has contended throughout this litigation that the City would not have agreed to the sale ”but for” the easement.’”

Spring 2003: Numerous community council meetings held for City to pitch west side plan. Varying results.

April 9, 2003: Planning Commission votes no on extinguishment of easement.

June 3, 2003: ACLU sends letter to City Council on proposal to abandon public’s rights.

June 10, 2003: City Council votes 6-0, with one abstention, to vacate the easement.

June 23, 2003: US Supreme Court refuses to hear LDS church appeal.

July 28, 2003: City and Church hold press conference to sign deeds and exchange land.

August 7, 2003: ACLU brings legal action asking court to examine everything surrounding the transaction to determine whether city set aside its long-stated and valid public policy for pedestrian access and passage through the Main Street plaza in order to acquiesce to desires of LDS Church to continue to impose discriminatory restrictions on speech resulting in a violation of free expression and separation of church and state.

May 3, 2004: U.S. District Court for the District of Utah grants the City’s and the Church’s Motions to Dismiss and denies the plaintiffs’ Motion for Preliminary Injunction

May 21, 2004: ACLU of Utah files Notice of Appeal to the Tenth Circuit on behalf of plaintiffs.

September 14, 2004: ACLU files brief with the Tenth Circuit Court.

December 17, 2004: ACLU submits its appellants’ reply brief to the Tenth Circuit Court. Oral arguments are scheduled for May 4, 2005.

May 4, 2005: Oral arguments.

October 3, 2005: Tenth Circuit Court issues its decision, ruling that the Main Street Plaza is no longer a public forum and that the city’s decision to sell the easement did not violate the Establishment Clause.

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Press Releases


June 4, 2001: ACLU Asks the Tenth Circuit to Review the Main Street Plaza Restrictions

August 13, 2001: ACLU Files Brief in Case Challenging the Main Street Plaza Restrictions

March 14, 2002: Tenth Circuit Court to Hear Arguments Concerning Main Street

October 9, 2002: Tenth Circuit Court of Appeals Reverses District Court Decision on Main Street

June 23, 2003: U.S. Supreme Court Will Not Hear Mormon Church Appeal

August 7, 2003: ACLU Returns to Court in Controversy Over Free Speech in Salt Lake City’s “Main Street Plaza”

May 21, 2004: ACLU Files Main Street Plaza Appeal

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Letters written to Salt Lake City

May 5, 1999: Letter to Mayor Deedee Corradini and Salt Lake City Council, "ACLU concerned about unconstitutional restrictions in the Main Street plan"

October 15, 2002: Letter to Mayor Ross Anderson, "Closed Door Meetings re Main Street Plaza"

October 18, 2002: Letter to Mayor Ross Anderson and Salt Lake City Council, "Main Street Plaza Restrictions"

December 17, 2002: Letter to Salt Lake City Council, "Proposed Restrictions for the Main Street Plaza"

June 3, 2003: Letter to Salt Lake City Council, "Mayor’s Proposal to Abandon the Public’s Rights on the Main Street Plaza"

 

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Reports and Articles by the ACLU


2001 Annual Report: Tenth Circuit Court of Appeals asked to review the Main Street plaza restrictions

2002 Fall Newsletter: Victory For the First Amendment - 10th Circuit Upholds Public Forum on Main Street Plaza

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Documents Filed in Court

November 1999: First Unitarian Church of Salt Lake City; Utahns for Fairness; Utah National Organization for Women and Craig Axford vs. Salt Lake City Corporation; and Ross C. "Rocky" Anderson, Mayor of Salt Lake City, in his official capacity.

November 2000: Motion for Partial Summary of Judgment

August 2000: Appeal to the Tenth Circuit Court of Appeals

December 2002: Entry of Judgment

January 2003: Response to City’s Entry of Judgment

August 2003: Utah Gospel Mission; First Unitarian Church of Salt Lake City: Shundahai Network; National Organization of Utah; and Lee J. Siegel vs. Salt Lake City Corporation; and Ross C. "Rocky" Anderson, Mayor of Salt Lake City, in his official capacity

September 2003: Response to Salt Lake City’s Motion to Dismiss

October 2003: Second Amended Complaint

November 7, 2003: ACLU of Utah seeks injunction to restore status quo on Main Street Plaza calling for First Amendment freedom while second lawsuit goes through courts. A Memorandum in Support of Preliminary Injunction was filed. Read the memorandum

December 2, 2003: ACLU of Utah files Amended Complaint for Main Street Plaza lawsuit. Read the complaint

January 5, 2004: Memorandum in opposition to motions to dismiss by the Mayor, Salt Lake City Corp. and the Church of Jesus Christ of Latter Day Saints

January 6, 2004: Memorandum in opposition to motions to quash and/or for protective orders by Salt Lake Tribune and Deseret Morning News

May 21, 2004: Notice to Appeal, filed on May 21, 2004

September 14, 2004: ACLU files brief with the Tenth Circuit Court of Appeals

December 17, 2004: ACLU submits its appellants’ reply brief to the Tenth Circuit Court; oral arguments are scheduled for May 4, 2005

June 30, 2005: In a letter to the Tenth Circuit Court of Appeals, the ACLU outlines how a recent Supreme Court decision bolsters its arguments in the Main Street case

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ACLU of Utah Protects Freedom of Religion for Everyone


The ACLU has a long and proud tradition of defending religious liberty. Americans enjoy a degree of religious freedom unknown in most of the rest of the world, and they take full advantage it: the United States is home to more than 1,500 different religious bodies and 360,000 churches, synagogues and mosques.

The right of each and every American to practice his or her own religion, or no religion at all, is among the most fundamental of the freedoms guaranteed by the Bill of Rights. The Constitution’s framers understood very well that religious liberty can flourish only if the government leaves religion alone. The free exercise clause of the First Amendment guarantees the right to practice one’s religion free of government interference. The establishment clause requires the separation of church and state. Combined, they ensure religious liberty.

Because separation of church and state issues receive a lot of press attention here in Utah, we remind you that the principles we defend ultimately ensure freedom for everyone.

Recall that recently the ACLU represented Mormon citizens in Texas who objected to government sponsored (usually Southern Baptist) prayers at the high school football games. After years in the courts, the Mormons and the ACLU prevailed on First Amendment theories of separation of church and state. Also recall that the ACLU sided with the Mormons and other religions supporting the right to proselytize door-to-door. Going all the way to the Supreme Court, a town ordinance was struck down that required registration and identification.

In 2000, after a long struggle, President Clinton signed into law the bill that protects religious freedom from unfair government restrictions. The result of months of negotiation across party lines, and between groups that were traditionally pitted against one another, the law, introduced by Senators Hatch and Kennedy, was supported by more than 60 groups, including the ACLU, the Family Research Council, the Baptist Joint Committee, the Christian Legal Society, the American Jewish Congress, and Christian denominations ranging from Catholics to Mormons to Seventh Day Adventists.

We will continue to work to ensure religious liberty for all people in America.

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