Liquor suit seeks to muzzle LDS Church

Published: Wednesday, Nov. 2 2011 7:50 a.m. MDT

SALT LAKE CITY — If the Utah Hospitality Association has its way, the LDS Church won't be able to talk to state legislators about liquor laws in the future. The UHA, a trade group for bars and restaurants, asked the U.S. District Court in Salt Lake City last week to enforce the request as part of its ongoing efforts to overturn parts of Senate Bill 314, which bans daily drink specials and ties the number of liquor licenses to population totals and to the number of state-employed police officers.

Frederick Gedicks, who teaches constitutional law at BYU's J. Reuben Clark Law School, doesn't think a ban on the church will happen, "You can't single out a religion and say, 'Everyone else gets to lobby the legislature but you.'"

Although the LDS Church issued no statement on the UHA's lawsuit, it has spoken about the issues in the past. In 2008, for example, the church acknowledged that alcoholic beverages are available to the public, but issued a statement that the church "has always called for reasonable regulations to (1) limit consumption, (2) reduce impaired driving, and (3) work to eliminate underage drinking."

UHA's attorney, Lisa Marcy, declined to comment, but board member Ken Wynn said the group seeks to curb the influence of the LDS Church. "The LDS Church carries a big foot in this state and influences legislation," he said. "We are suggesting the LDS Church butt out of legislation regarding liquor. I doubt that will ever happen, but at least we are bringing that to the attention of the people."

UHA filed a lawsuit in the U.S. District Court, District of Utah in June with the main goal of ending restrictions on price specials (the law only allows set prices). The new request for an order limiting the church comes in a revised version of its legal complaint, and asks the court to "enjoin the legislators of the State of Utah from considering the opinions of The Church of Jesus Christ of Latter-day Saints in making alcohol policies during all future legislative sessions." It also asks for a declaration that the church's influence on the 2011 legislative session was "unconstitutional under the state and federal constitutions."

"We are hoping the court will say we need to have a little separation of church and state here," said Wynn, a former director of the Utah Department of Alcoholic Beverage Control Commission.

But not every trade association for establishments that sell alcohol is taking part in the lawsuit. Melva Sine, president of the Utah Restaurant Association, said her association isn't involved in UHA's lawsuit about alcohol and is focused more on fair taxing issues right now. "Any organization has the right to represent the views of their members and obviously the Utah Hospitality Association has become frustrated enough to go to court," she said. "But we feel as the Utah Restaurant Association that we can still work within the structure that has been set up here. For us, as restaurant owners, the problem is we are putting forth an image that you can't get a drink in Utah. And that is not true. It is more restrictive for the restaurant owners, but for a customer who comes into my facility and orders a drink, I'm going to get them a drink."

In the newly revised legal complaint, UHA mentions how two representatives from the LDS Church regularly attended the 2011 sessions. UHA's complaint also said Sen. John Valentine, R-Orem, who sponsored the SB314 legislation, claimed support for the bill from "The Church of Jesus Christ of Latter-day Saints, MADD and parent teacher associations."

Valentine, however, doesn't think the church should have to stay silent on the topic of alcohol. "I think that it's very misplaced to think you can prohibit a person from redressing their government," Valentine said. "During the last number of legislative sessions The Church of Jesus Christ of Latter-day Saints has been very active in the liquor debates, but they are not the only party who is at the table. They had a say just like anybody else did."

Joni Jones, Assistant Utah Attorney General said when the UHA first brought the lawsuit it didn't include any issues of the LDS Church consulting with the legislature. The claims focused on how the SB314 prohibitions violated the Sherman Antitrust Act. "We felt confident that those claims didn't have a basis in law," she said. "I think it is safe to say that we will evaluate the new claims and if they also don't have a legal basis we would file a motion to dismiss, but we haven't had an opportunity to review the allegations and review the law yet."

Michael W. McConnell, director of the Constitutional Law Center at Stanford Law School and a member of the Deseret News Editorial Advisory Board didn't have specific knowledge of the UHA complaint, but strongly emphasized that, like other nonprofit organizations, churches are permitted to reasonably lobby legislators.

"This is not a contested question," McConnell said. "There are limits in the tax code, applicable to all nonprofit organizations, limiting the amount of lobbying they can do and forbidding grass-roots lobbying and electioneering. There are some differences in detail about how these tax rules apply to churches, but they do not affect the big picture."

Gedicks at BYU said churches have a right to lobby the legislature just like anybody else. "Problems only arise if there is no conceivable secular purpose for the legislation that results," he said. "And there are plenty of secular reasons to discourage the consumption of alcohol. That's just obvious. The fact the church lobbies for restrictive alcohol laws doesn't render those laws religious or some violation of the establishment clause or a union of church and state. My guess is Mothers Against Drunk Driving is not on the side of Utah Hospitality Association either."

University of Utah law professor Wayne McCormack's analysis supports Gedicks.

"I don't see how anyone could try to muzzle a church," McCormack said. "It would not be permissible to turn over mechanisms of state government to a church but surely nobody could prevent them from engaging in the political process."

According to Jones, the state's response to the complaint is due in about two months.

Meanwhile, the front page of the UHA website makes a plea for support: "This is not a case about drinking. It is about taking our government back. So make it happen."

Wynn with UHA, however, was somewhat philosophical, if not ironic, about the case.

"We know the church will never butt out," Wynn said, "but if they are going to be involved in it, at least talk to us and get our side of the liquor issue in this state. They are only getting one side. Nobody will talk to us."

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