City officials are seeking a 30-day extension to petition the U.S. Supreme Court for a hearing on whether a local attorney had standing to challenge the city's subsidized lighting of a Mormon temple.
An application for the extension was filed Dec. 11 by the city and its new counsel of record, Brigham Young University President Rex E. Lee, a former U.S. solicitor general.The petition will ask the Supreme Court to review an Aug. 3 judgment by the 10th U.S. Circuit Court of Appeals, which found that attorney Phillip Lang Foremaster had legal standing to bring the suit and was the prevailing party in the lighting issue of the case.
The appeals court determined that the city's actions constituted an impermissible subsidy of a religious institution.
The court also remanded the question of determining the primary effect of using the temple's likeness on a city logo.
The city's petition for rehearing before the appeals court was denied on Sept. 28, and the deadline for filing a writ of certiorari before the Supreme Court, if not extended, expires Dec. 26.
In their application, city officials note that the temple was the first Mormon temple completed in the West and attracted more than 250,000 visitors in 1985.
Since 1942, the city has promoted the temple as a tourist attraction by defraying the cost of lighting the building at night. The city also has included it as part of the official logo, along with sketches of a hill with the word "Dixie" on it and a golf course, both of which reflect the recreational opportunities in St. George, the application states.
In October 1985, Foremaster filed a lawsuit in U.S. District Court challenging the $180 a month subsidy for temple lighting and the use of the temple's likeness on the city logo as violations of the state and U.S. constitutions.
In response, the city stopped the subsidy.
Foremaster then sought attorney fees, claiming his lawsuit was the catalyst in terminating the unconstitutional subsidy.
U.S. District Judge J. Thomas Greene dismissed Foremaster's claim on grounds he lacked standing to challenge the subsidy. Greene also granted summary judgment to the city regarding the Establishment Clause challenge on inclusion of the temple on the city logo.
The appeals court reversed Greene, holding that as a ratepayer, Foremaster had standing to challenge the subsidy and was entitled to attorney fees, which total more than $110,000, because he was the prevailing party.
The appeals court found that the subsidy violated the principle of "complete government neutrality toward religion."
It also reversed Greene's summary judgment on the logo issue, ruling that a jury should decide whether the temple's likeness in the logo primarily conveyed governmental endorsement and advancement of the Mormon religion.