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by
Maurine Jensen Proctor
Editor-in-Chief, Meridian Magazine
(click on images to enlarge)
Last week the 10th Circuit Court of Appeals did something dangerous.
When they defined the plaza owned by The Church of Jesus Christ
of Latter-day Saints as a public forum that could be administered
by the city, they took a swipe at free religious expression and
property rights that may reverberate well beyond Salt Lake City.
Though the Church
is appealing the case to the Supreme Court, for now, at least, this
decision may lead to alarming intrusions by government into the
religious freedom of Latter-day Saints. Think “wine-and cheese
tasting party” or “anti-Iraq war demonstration”
near the steps of the temple--both events reportedly with pending
permit applications to the city--and it is clear how far from the
original intent of creating a tranquil square the court’s
ruling travels.
Salt
Lake Temple as seen through trees on the Main Street Plaza
In brief, Salt
Lake City came to the Church asking if they would turn the stretch
of Main Street into a green space, at $8.1 million the Church paid
top dollar for the land, spent millions more to improve and beautify
the area, will heft the costs of maintaining it, pay taxes, but
in an outrageous turn of events, it will not control how its own
privately-held land is used. Instead, the city will be empowered
to grant applications for demonstrations, protests and gatherings
of all sorts including those which subvert the values of the Church.
Something has
gone seriously awry. In this decision, the 10th Circuit Court went
where no court has gone before. For the first time, in the name
of the First Amendment’s freedom of speech clause, a court
of appeals has converted a mere access and passage easement into
a full-blown public forum. It’s a move that not only tramples
the Church’s garden, but allows free speech to trump other
First Amendment considerations which are equally important—free
expression of religion and private property law.
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Gray
skies gather in winter around
Salt Lake Temple.
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It’s
a decision that dismays not only members of The Church of Jesus
Christ of Latter-day Saints, but also members of all churches who
may find themselves in the same position. If the campus which adjoins
one of the most sacred places to Latter-day Saints can be redefined
as a public forum based on a restricted public access agreement,
then any church or any private property owner may find his restricted
easement at risk to become a public forum.
For this reason
15 other mainline churches and the National League of Cities filed
amicus briefs with the court, backing Salt Lake City and the Church.
Packet Sent
In an unusual
gesture, The Church of Jesus Christ of Latter-day Saints began distributing
information packets throughout Salt Lake and Davis counties this
weekend to business, community and religious leaders with background
facts and details about the new Church plaza on what used to be
a section of Main Street. The idea, so typical of President Gordon
B. Hinckley, who always preaches about being a good neighbor, is
a public outreach of understanding, not a salvo to score points.
The packet not
only outlines the history and original vision of the Church plaza,
but highlights important community and legal issues. Perhaps, most
noteworthy is a
personal letter from President Hinckley addressed, “To
Our Neighbors: I send you warmest greetings.” The injured
party, here, reaches out in kindness.
[To read the
contents of the Church’s packet click here. http://www.lds.org/media/article/0,5422,116-13967,00.html]
He notes, “In
October 2000, we dedicated the Church’s new Conference Center
and the new Church plaza—including the area immediately in
front of the Salt Lake Temple which was formerly part of Main Street.
The prayer of dedication included a plea that the plaza be seen
as a place of peace—an oasis in the midst of this bustling
city—an island of quiet beauty where the weary may sit and
contemplate the things of God and the beauties of nature. Unfortunately,
some have since felt that this place of peace should be a place
of protest, that this island of quiet beauty should be used for
confrontational or noisy demonstrations. A distressing legal battle
has ensued.
“I am
sending you this packet of information for the simple purpose of
sharing our perspective. I invite you to study and ponder it in
light of our most important goal as neighbors; to live together
in peace with appreciation and respect one for another.” Then,
President Hinckley offers the address of the First Presidency and
invites comments.
Bishop H. David
Burton said, “Isn’t that President Hinckley’s
style? He is one of the most articulate men, the best of communicators,
but he’s also one of the best listeners. He is sincere in
asking, ‘Please tell me how you feel,’ and truly distressed
at litigation.”
Distressed and,
frankly, thunderstruck that it should have come to this. “Never
would we have imagined when the Church bought Main Street that this
would happen,” said Bishop Burton—and that for a very
good reason. The deed makes absolutely plain that “nothing
in the reservation of this easement shall be deemed to create a
public forum, limited or otherwise.” It was the written intent
of both the Church and the city that the situation never come to
this.
Both have been
double-crossed.
History
The idea to
close the one-block section of Main Street and replace the traffic
with trees, greenery and reflecting pools was first formulated by
Salt Lake City leaders as part of the “Second Century Plan”
in 1962. This was a plan to keep the downtown vital at a time when
other urban centers were decaying across the United States. The
Downtown Planning Association envisoned making Salt Lake City the
capital of Intermountain tourism. Merchants south of Temple Square
were hoping that if people came and lingered in an inviting plaza,
they would receive more business. The planners considered deeding
the property to the Church at no cost, if the Church would agree
to create a landscaped property similar in ambience to the adjoining
properties and install underground parking.
Over the next
several decades the aims of the Second Century Plan were gradually
achieved, many of them with the help and generosity of the Church.
For instance, The Salt Palace—a needed convention center and
exhibition hall—was built on Church land leased to the county
for one dollar per year. In 1993, the Church purchased from the
city the underground rights to the one-block section of Main Street,
but it was not until 1998 that Mayor Deedee Corradini’s administration
sought out the Church, inquiring about their interest in converting
the block-length section of Main Street into the long-awaited plaza.
The Church was
ready to construct their underground parking lot and it was a good
time for the decision to be made. Would they make of its surface
a street or a plaza?
The Church was
to pay top dollar for the block of Main Street, but in return it
would benefit by creating a peaceful, united Church campus. Jack
Gallivan, publisher emeritus of the Salt Lake Tribune said that
“it was never intended…that the acre addition to Temple
Square would become a public park where ‘smoking, sunbathing,
swearing, begging or picketing’ would be permitted.”
“Why, otherwise” asked Bishop Burton, “would the
Church invest this kind of money into a project unless it made the
requirements clear from the beginning?”
The city had
a requirement, too. It wanted a limited access and passage easement
which simply means access to the property and passage through it.
For the taxpayers,
it was downtown green space at no cost to them, but still, extensive
briefings, meetings and public hearings were held over a 4-month
period in what Mayor Deedee Corradini called “one of the most
open and engaged public processes this city has experienced. The
chair of the Planning Commission said that this proposal was passed
with “maximum public awareness.”
Still, this
wasn’t enough for the critics. They claimed the meetings were
secretive, under the table, a city bowing to a monolithic religious
power. These were easily-flung accusations that flew right in the
face of facts, and the issue they coalesced around was freedom of
speech. The Church campus has over a mile of sidewalks around it
where free speech is allowed, but they wanted the block that belonged
to the Church to be without restrictions as well.
According to
Mike Lee, attorney for the National League of Cities in the suit,
“Nobody wants to be a private owner of property that is a
public forum. When you purchase a property you purchase, a bundle
of rights with it. Property law is one area that is exclusively
a state law issue. Under Utah law, someone who is selling a piece
of property and reserving an easement can define the scope of that
easement in any way that they want.” Salt Lake City and the
Church agreed on a definition.
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Reflecting pool on Main
Street Plaza showing the proximtiy of the Salt Lake Temple.
Temple Square is the number one tourist attraction in Salt
Lake City. |
Sorry, says
the 10th Circuit Court—and then made this chilling pronouncement.
Either government ownership or regulation is sufficient for a First
Amendment forum of some kind to exist. What does this mean and how
far does it go? Is the court really making the breathtaking suggestion
that if a government has any kind of regulation regarding a property,
even the simplest kind of passage easement, that First Amendment
free speech rights might exist?
If so, this
is striking at the very heart of our pluralistic society, for it
is through our private property and free association that we define
ourselves. We live peacefully and freely together because we have
our spaces to say what we are and what we are not. We can set standards,
express differences, embrace unique beliefs. Take that away and
we undo the most basic freedom. The ACLU who has championed the
suit against the city and the Church is basically saying, free speech
for me, but not for thee. The public wants your block to say whatever
they want, no matter how it abridges your rights to present yourself
and enjoy your own property.
Consider if
there were indeed a wine and cheese tasting festival or an anti-war
demonstration while a bride and groom fresh from a temple wedding
were trying to take pictures, if a weary soul wanted to pull away
from the world and pray? What entanglements grow when government
is mandated to have direct control over a privately-held religious
plaza?
The Incredible Shrinking Right of Free Exercise
Overarching
both the free speech and private property issues is the free exercise
of religion listed first in the Bill of Rights—and something
that the 10th Circuit Court did not address. It says that Congress
shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof. Yet isn’t that just what happened?
What is free about a religious plaza that you own, but you can’t
control?
Daniel L. Dreisbach,
Professor at American University and author of Thomas Jefferson
and the Wall of Separation Between Church and State, said, “I
am deeply concerned about the troubling encroachment of government
on the private sphere. Cases like this are an opening for the government
to say what you can and cannot communicate on your private land.”
The First Amendment
was created to impose restrictions on the state, preventing it from
intruding on the religious domain. On the contrary, it was never
meant to impose restrictions on religion.
This is a very
different conceptualization than we hear today. In a misreading
of history, religion is being beaten out of the public square in
the name of the First Amendment.
Dr. Driesbach said, “There has been a big intimidation factor
from those hostile to religion. The ACLU has been very effective
in communicating the message that the Constitution restricts the
expression of religion in public life.” That was never the
intention of the Founders who framed the First Amendment as a series
of safeguards against government intrusion on religion.
When the ACLU
goes about the country suing to have religious symbols removed from
government buildings, it says they should go on a church’s
private property. Now, apparently, even a church’s private
property isn’t going to be safe for free exercise.
We are seeing
in this country a gradual shrinking of the free exercise of religion.
Dr. Driesbach notes that to make a good and compelling free exercise
case legally, you need to connect it to some other right, almost
as if free exercise wasn’t a stand alone right. A number of
lawyers advancing the interest of religious people in the public
square, such as students who want to have a Bible club at school,
have chosen to root their claims on free speech alone, fearing that
courts weren’t sensitive to free exercise claims. It’s
a tactical decision based on what flies with the courts.
That the 10th
Circuit Court could mandate any state control over a religious plaza
suggests how far the free exercise of religion has shrunk.
So Latter-day
Saints have just been broadsided at an intersection of rights—free
exercise of religion, private property, and free speech. While the
free speech issue had little merit and negated state property law,
it carried the day, with the 10th Circuit Court who has opened up
potential litigation on every easement in their jurisdiction. Not
only were the other categories of rights trumped, they were merely
shadows to the Circuit Court.
Will the Supreme
Court take the case? It’s hard to say. What Bishop Burton
hopes is that the issue can be resolved before that time by the
City Council who have been advised by their lawyer that they can
vote to have the ordinance amended and the easement removed. It
would take four of the seven council members voting in the affirmative
or a super majority of five should the mayor veto their vote.
“If the
plaza is able to exist the way it was initially contemplated as
a place of peace but not a place of demonstration everybody wins,”
said Elder Lance Wickman. “The public wins because there is
this beautiful plaza; those who want to exercise speech that is
not allowed on the square win because they have more than a mile
of sidewalk around the church campus, cities win because they can
sell land and get a good price without worry about later easement
battles. But if the 10th Circuit Court’s decision stands,
then there are winners and losers.”
Perhaps the
biggest losers will not just be those who would like to enjoy the
Church’s plaza the way it was intended, but all of us who
have seen with this case a wobbling in the checks and balances that
protect not just free speech, but private property and the free
exercise of religion.
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