It was once referred to as a community gathering place akin to "a little bit of Paris."
But now Salt Lake City and LDS Church attorneys say people need an "invitation" to walk across Main Street Plaza.
"The people who are on that plaza now are there by invitation," Steven Allred, chief deputy city attorney, said.
"People can only enter the plaza with the church's permission," LDS Church attorney Alan Sullivan added.
Tenth U.S. Circuit Court Judge Dale Kimball on Monday heard arguments in the American Civil Liberties Union's second Main Street Plaza case.
Kimball said he would weigh the arguments and offer a written decision as soon as possible.
ACLU attorney Mark Lopez considered the arguments by Sullivan and Allred a sham, noting that the church's own estimates show 30 million people use the plaza yearly to eat lunch, cut across an otherwise closed block or to access Temple Square. Few, if any, get church permission before entering Main Street Plaza. In fact, Lopez said, the plaza functions just like it did before the city traded its public access easement on the plaza to The Church of Jesus Christ of Latter-day Saints for church-owned land and cash totaling nearly $5.5 million.
Lopez said the city had a wink-and-nod commitment from the LDS Church that church leaders would keep public access on the plaza open if the city traded away the public access easement.
Because of that commitment and because the plaza still functions as a thoroughfare as it did when it was part of Main Street, it remains a public forum, Lopez said. The resulting situation, he said, is that the LDS Church is controlling free speech on what amounts to a public park.
Like with any park, Lopez told the court, the LDS Church can't regulate speech on the plaza or forbid a homosexual couple from holding hands while walking there.
"They've purchased the right to run Main Street," Lopez said. "It's as pure and simple as that."
The city and church need to do something more, like put up a fence, to prohibit the plaza from acting as a public forum, Lopez said.
Allred and Sullivan agreed the church controls speech on the plaza, but that's because it owns and operates it free and clear, just like any private property owner, they said.
"It is clearly the city's intent to wash its hands of this property," Allred said.
Sullivan said any behind-the-scenes agreement is irrelevant because legal documents signed by city leaders indicate any such prior agreement is null and void.
Kimball is considering several legal motions from city, church and ACLU attorneys. The ACLU wants free speech and expression rights restored to the plaza until Kimball can consider its case at trial. Church and city attorneys want Kimball to dismiss the case before it goes any further.
Kimball also heard arguments about whether the city capitulated to LDS Church pressure when it traded the easement, thus violating the establishment clause of the U.S. Constitution, which forbids government from "establishing" a religion.
The ACLU maintains the city, mainly Mayor Rocky Anderson, desired to give the LDS Church what it wanted on the plaza and thus proposed trading the city's easement.
Kimball asked Lopez what the ACLU would say if the city's motivation was dual to appease the church and gain $5.5 million in cash and land where a community center is to be built.
Lopez insisted the city's primary motivation was appeasing the church and called the $5.5 million in considerations a "sham."
Allred and Sullivan told Kimball he shouldn't examine the personal motivations of various elected officials but should instead note that the city received about 11 times the fair-market value of the easement and solved a contentious community issue.
"Government can sell public property to a church and not violate the establishment clause as long as the sale is for adequate compensation," Sullivan said.
Certainly, the pair argued, cities and churches can engage in contracts and transactions as long as such sales and deals are done for at least fair-market value.
The initial Main Street Plaza suit came after the city sold a block of Main Street to the LDS Church in 1999 for $8.1 million. In that sale, the city reserved a public-access easement across the plaza but gave the church the authority to prohibit on-plaza protests and proselytizing, certain dress and other behavior the LDS Church finds offensive. The plaza is adjacent to the church's headquarters and the Salt Lake Temple and across the street from the Conference Center.
Representing the First Unitarian Church of Salt Lake City, among others, the ACLU of Utah sued Salt Lake City over the restrictions, and in 2002 the 10th Circuit Court of Appeals in Denver sided with the ACLU. The court said the city cannot have public access on the plaza while forbidding certain types of speech or other First Amendment protections.
After the 10th Circuit's ruling, Anderson proposed "time, place and manner" restrictions on the plaza easement, a plan rejected by the church. Later, Anderson developed a plan in which the easement rights would be traded for two acres of church-owned land in the city's Glendale area, where a privately funded community center would be built. The deal made the plaza entirely private, with the city relinquishing public guarantees of free expression and pedestrian passage.
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