As it has threatened to do for months, the American Civil Liberties Union of Utah has sued Salt Lake City for its closure and sale of a block of Main Street to The Church of Jesus Christ of Latter-day Saints.
The complaint, filed Tuesday in U.S. District Court, says the city violated the First Amendment by allowing the church to restrict public access to the street's replacement: a plaza now under construction on the street between Temple Square and the church administration block.The complaint asks the court to reverse the public access restrictions, among other relief. It also names Mayor Deedee Corradini as a defendant.
ACLU officers are acting as the attorneys for named plaintiffs First Unitarian Church of Salt Lake City, Utahns for Fairness and the Utah National Organization for Women. The three organizations say the sale has illegally restricted their ability to picket or otherwise demonstrate.
LDS Church officials, through spokesman Dale Bills, declined comment Tuesday morning since they had not yet seen the complaint. Ken Connaughton, spokesman for Corradini, declined comment for the same reason.
The sale, which took place last spring for $8.2 million, was conditioned on the LDS Church granting an easement for public access to the property. However, significant restrictions were placed on the easement, including the prohibition of alcohol and tobacco and "loitering, assembling, partying, demonstrating, picketing . . . engaging in any illegal, offensive, indecent, obscene, vulgar, lewd or disorderly speech, dress or conduct."
The church itself is not restricted in its use of the property.
Some observers and participants in the process, including some members of the Planning Commission and City Council, objected to those restrictions, saying they rendered the "public access" nature of the plaza meaningless.
"When I voted in opposition to the sale of the street, one of my concerns pertained to the free speech issue and public access," Councilwoman Deeda Seed said Tuesday. She was one of two votes against the sale.
"Defendants . . . purported to grant the LDS Corporation unbridled discretion in controlling access to the property pursuant to that easement," the complaint states. "This raises not only the possibility but also the likelihood that such discretion will be employed for explicitly religious goals."
Church and city officials have said the restrictions don't go much beyond what is already restricted at public parks and that the additional restrictions are necessary for the church to make sure the plaza remains a peaceful place.
The plaintiffs say the sale violates the First Amendment, among other constitutional provisions, in that it restricts free speech, violates separation of church and state and favors the church over other entities, violating the Constitution's "equal protection under the law" clause.
Some months ago the ACLU exchanged numerous letters with City Attorney Roger Cutler in which it maintained the property remains in the public domain, notwithstanding the sale.
The complaint makes the same claim.
"Plaintiffs contend that Main Street has been and remains, notwithstanding the sale, a traditional public forum because it previously was public and continues to serve as a thoroughfare open to the general public," it states.
Cutler, not surprisingly, maintains the law does not support such a conclusion. What's more, in a letter last June to ACLU legal director Stephen Clark, one of the plaintiffs' attorneys in the suit, Cutler said the city would abandon all claim to public access to the plaza if a court should hold the easement restrictions to be illegal.
Cutler was unavailable for comment Tuesday morning, as was mayor-elect Rocky Anderson. However, Anderson has said numerous times that he disagrees with Cutler.
"(Upon taking office) I will certainly change the stated policy in terms of abandoning any claim to public access if the restrictive covenants are held to be unconstitutional," he told the Deseret News shortly after the Nov. 2 election. "(But) if it's not pursued (in court), we've got those restrictive covenants in place, and we have to honor them."
Anderson added that if the restrictions are found to be illegal, he will work to draft a new easement that all sides can be comfortable with.
Clark said the ACLU became interested in the matter when the Unitarian Church invited him to a roundtable last summer to discuss it. At first he believed the city was within its rights, but "as I started to look at it, I became aware of the constitutional restrictions and that kind of became the genesis for this whole thing."
Clark said he was contacted by several groups and residents who were concerned the city had sold their First Amendment rights to the LDS Church and had unconstitutionally given the church a platform for expression not offered to others.
"It was not the kind of case that we had to go out and beat the brush to find people concerned about the situation," he said.
The national office of the ACLU will assist Clark's office in litigating the case by providing the services of an attorney who has dealt with similar issues.