ACLU of Utah Defends Main Street, USA

ACLU News Wire: 05-06-99 — ACLU of Utah Defends Main Street, USA

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SALT LAKE CITY — The American Civil Liberties Union of Utah is challenging city-sanctioned restrictions of public expression on the Mormon Church’s pedestrian plaza planned for Main Street, the Salt Lake Tribune reported today.

On Wednesday, ACLU of Utah Legal Director Stephen Clark sent a letter to city attorneys and council members threatening litigation if the limits are not lifted.

“Main Street, like all public streets, is and always has been a traditional public forum, a uniquely American institution central to the `marketplace of ideas,’ open to the unorthodox as well as the conventional,” Clark wrote. “It never has been, is not now, and must not be allowed to become an extension of Temple Square.”

According to the Tribune, City Council members voted 5-2 last month, along Mormon/ non-Mormon lines, to sell one block of Main Street from North Temple to South Temple to The Church of Jesus Christ of Latter-day Saints for $8.1 million.

That night, a draft of “easement restrictions” appeared for the first time. Under those rules, church security guards would be able to evict pedestrians who assemble, picket, distribute literature, sunbathe, smoke, carry guns, play music, make speeches or engage “in illegal, offensive, indecent, obscene, vulgar, lewd or disorderly speech, dress or conduct.” Council members let those restrictions pass.

In the final document, city and church attorneys added a clause that specifically protects church-related activities “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.”

Under this clause, for example, music and speeches from the church’s biannual general conferences could be broadcast on the plaza. And the church could bar permanently anyone who has threatened harm to church leaders and members or their property.

But while the two acres of grass and trees with a reflecting pool will be church property, the ACLU’s Clark said, the restrictions on behavior nevertheless violate the First. And the stated protections for church speech violate the amendment’s establishment clause, which prohibits government from respecting one religion over another.

He cites two Boston cases for proof.

In one, the city leased a historic square to a private developer for 99 years, retaining a public easement on the property. Property managers tried to evict residents who picketed one restaurant for serving veal. Federal judges ruled cities cannot strip a traditional public forum of its status simply by conveying title.

And the U.S. Supreme Court ruled Boston violated the First Amendment establishment clause when city leaders passed a law allowing any church to veto liquor licenses within 500 feet of its buildings. Justices ruled cities cannot delegate their discretionary authority to religious institutions.

Salt Lake City has violated the Constitution on both counts, Clark says. “I’m not sure what the city bargained for,” he adds. “The city bargained for an easement on behalf of the public, but then agreed to these improper and unconstitutional restrictions. They can’t have it both ways.”

But Council Chairman Keith Christensen told the Tribune that he stands behind his vote. “The deed has been transferred, the money has been received and the deed has been recorded,” he says. “We have done what we’ve done. We’re not going to undo it. And we’ll defend it if we need to.”

Source: The Salt Lake Tribune, May 6, 1999