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ACLU suit is called harmful

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OREM — A Brigham Young University law professor said Tuesday that a lawsuit filed last month in the Main Street Plaza controversy does not benefit the public interest.

John Fee, who teaches First Amendment and property and land-use courses, said the American Civil Liberties Union and other plaintiffs in the suit against Salt Lake City should accept the compromise reached in July to give total control of a block of Main Street to the LDS Church.

Fee was participating in a panel discussion as part of Ethics Awareness Week at Utah Valley State College.

While Fee said the ACLU, First Unitarian Church and other parties to the complaint have the right to challenge the constitutionality of Salt Lake City's relinquishment of a public easement and the free-speech rights they believe it protected, they should consider the harm already caused by their first lawsuit.

Ethically, Fee said, it is sometimes better not to push cases to their legal limit.

In this case, Fee said, there has been harm to the LDS Church and its membership because of the financial costs of litigation and because protesters interfered with wedding parties and other ceremonies on the grounds of the Salt Lake Temple adjacent to the plaza after the U.S. Tenth Circuit Court of Appeals found in favor of the ACLU in the first suit.

That litigation, now known popularly as "Main Street I," also damaged relations between the LDS Church community and others in the state. Fee doesn't think the sequel is worth the cost, aside from his opinion that it lacks merit.

"I think the recent compromise is a good one, and we should leave it at that," Fee said. "By failing to accept this, they are dragging this out."

Two of Tuesday's panelists are plaintiffs in the suit. ACLU executive director Dani Eyer and the Rev. Tom Goldsmith of the First Unitarian Church said they would fight on because they believe the relinquishment of the easement stripped groups and individuals of their First Amendment free speech rights to express views different from the LDS Church's on what was public property.

The fourth panelist, former Salt Lake City attorney Roger Cutler, said the sale wasn't initiated by the LDS Church but by the city. Cutler said then-Mayor Deedee Corradini thought she could handle the long-discussed sale without "arguments and entanglements" about favoritism for the church because she was a female Democrat from New York who wasn't LDS.

"I think there's been a lot of storm and thunder to try and convert this to some sort of bait-and-switch on the part of the church," Cutler said. "It was not done to facilitate the church but to facilitate the economic development and landscaping of the city."

Eyer, a BYU graduate and former social studies teacher at Springville High School who called the issue an interesting civics lesson, said that didn't matter.

"For me, it's neither here nor there who initiated the sale," she said. "It did happen. We to this day think it was a bad idea." The bottom line, Eyer said, is that "the church put restrictions on activities on the plaza, which resulted in restrictions on speech."

But she didn't blame the LDS Church." We don't have any beef at all with the LDS Church advocating to its heart's content. The breach of duty is in the public officials who set aside valid secular and public policy for the will of the church."

Goldsmith said the Unitarian Church's past provides him with insight into a community where one church is dominant. The Unitarians towered above Boston politics in the early 1800s to the point that public taxes paid the salaries of the church's ministers.

"Basically," Goldsmith said, "church leaders were saying to Bostonians, 'Without our moral leadership and influence, the city would go to pot.' I know what it's like to have a religion control government affairs. If you're part of that religion, it's a thing of beauty. If you're not, it means the violation of civil liberties and the abuse of power. The problem is not the Mormon Church in Salt Lake City. The problem exists whenever a church becomes the dominant church in a community."

Cutler said the city was obligated to reach a compromise that gave the LDS Church control over the plaza because the church only agreed to Corradini's $8.1 million offer on the condition it wouldn't give protesters a new soapbox.

"The church said it didn't want to pay for a block that would become a platform for ugly, hostile, anti-Mormon statements, and that's what happened (after the 10th Circuit Court ruling)," Cutler said.

There is no timetable for a ruling in Main Street II, Eyer said. The suit was filed in U.S. District Court for Utah.

E-mail: twalch@desnews.com