DENVER Despite a July 2003 deal ceding control of the Main Street Plaza to The Church of Jesus Christ of Latter-day Saints, the area continues to be "infused with public purposes" and should therefore be subject to all the constitutional requirements of a traditional public forum, an attorney for the American Civil Liberties Union told a federal appeals court in Denver Wednesday.
Attorney Mark Lopez said the agreement between Salt Lake City and the LDS Church changed nothing more than the name on the property deed, meaning the constitutional problems on the former block of downtown remain.
The ACLU is asking the 10th U.S. Circuit Court of Appeals to find that the city's decision to sell a public easement on the controversial plaza to settle an earlier lawsuit runs afoul of the U.S. Constitution.
A Utah federal judge approved the deal in which the church traded 2.1 acres of land on the city's west side for the easement as a way for Salt Lake City to disentangle itself from a situation where it would have to allow typical First Amendment activities on the sidewalks running through the plaza. The church imposed speech and behavior restrictions on the plaza shortly after buying it from the city in 1998 for $8.1 million.
Relinquishment of the easement was a solution suggested by an earlier panel from the 10th Circuit, although the judges did not indicate specifically how that should be done. The federal appeals court earlier ruled that as long as the city retained some control over the easement, constitutional protections must apply.
It was that issue allegations of the city's continued control of the property that appeared to be of most interest to the judges Wednesday morning. The panel peppered attorneys with questions about the current function of the plaza and whether the church, if it so chose, could close the property in its entirety.
"What words in the deal prohibit the Mormon Church from shutting the plaza area at their wish?" Judge Carlos Lucero asked.
If the area is indeed truly private, the judge said, the church could post security guards at all Main Street Plaza entrances and restrict access to anyone but LDS faithful or tourists.
Which the church could do under the terms of its agreement with the city, attorney Steven Allred said.
"This is private property. The fact that the LDS Church sees fit to invite people onto the property is no different, in my opinion, than my inviting people into my home," he said.
LDS Church attorney Alan Sullivan agreed that the church can restrict public access to the plaza at any time and has done so on a number of occasions since July 2003.
Although many still use the area as a thoroughfare to get into downtown Salt Lake City, a use Sullivan later said the church encourages and does not intend to prohibit, it is no longer dedicated to any public purpose.
"If you go onto the plaza, you would know that you are in a religious enclave," he said.
While that might be technically true, the ACLU maintains that the plaza, in a prime downtown location connecting the city's commercial district to residential and governmental districts, continues to operate as a public forum. Further, that function was understood when the city and church entered into its agreement, Lopez said.
"All they did was change the title, and they did it in a way, a very cute way," to ensure that it continued to operate as a public forum, he said.
Lopez argued the city got what it wanted continued public use of the plaza sidewalks. And the church got what it wanted the right to restrict speech and behavior on the property.
"Is there any doubt in your mind that this case is about protecting the interest of the church from dissenting points of view?" Lopez asked.
Seizing on those allegations of collusion between the church and the city, Lucero directly asked attorneys for both about the intent behind the settlement agreement.
Is there an agreement, express or implied, secret or otherwise, by which the city has some kind of understanding with the LDS Church that they will not close the sidewalks? the judge asked.
The city, Allred said, "categorically denies" the existence of any such agreement.
Aside from that exchange, the court did not spend much time Wednesday on the ACLU's claims that the city improperly entered into the deal simply to please the LDS Church or that Salt Lake City Mayor Rocky Anderson, who initially came out strongly against selling the easement, caved to political pressure.
The city has continued to cite the secular benefits it gained from the agreement, namely the 2.1 acres of land near the Sorenson Multi-Cultural Center and some $5 million in private donations to construct a community center on the property.
Wednesday, under questioning by Judge Mary Beck Briscoe, Sullivan dismissed ACLU allegations of a "sham transaction." The transaction can't be a sham as long as the secular purposes are not a sham, he said.
After the hearing, Lopez acknowledged that the ACLU has a high burden to meet in order to succeed on appeal. Ultimately, he said, the court will have to determine that the Main Street Plaza continues to act as public property.
Still, he said, "I think the people of Salt Lake City know why this deal occurred, and I think they understand why the city was so willing to bend over backwards to meet the demands of the LDS Church."
The appeals court took the matter under advisement. It did not indicate when it would issue a ruling in the case.