Tug of war continues over sale of street to Mormon Church

Tuesday, June 1, 1999

Salt Lake City'...
Salt Lake City's Main Street as it looks now, near Mormon Temple.

A Utah civil liberties group continues to insist that the Salt Lake City Council's sale of part of a public thoroughfare to the Mormon Church just won't work constitutionally.

In mid-April, the council agreed to sell a block of Main Street near the Mormon Temple. The block, traditionally open around the clock to the public, is now scheduled to become an extension of the Mormon Temple, surrounded by church security guards who would enforce a code of conduct.

Speech-making, picketing, pamphleteering, begging, cursing, smoking, sunbathing, bicycling and other activities would be prohibited, according to the city-church deal. Those restrictions, however, would not apply to Mormons — Utah's largest organized religious group. Under the deal approved by the city council, Mormons would be permitted to play music and hand out religious tracts.

The state affiliate of the American Civil Liberties Union has already assailed the city council and City Attorney Roger Cutler, denouncing them in a letter in early May for turning the public square into “a little bit of Beijing or Red Square — a place where orthodoxy in speech and conduct is vigorously enforced and constitutional rights are non-existent.”

Cutler's defense — that the Mormons “wanted to protect their property from protests, anti-church demonstrations, guns and drunks — which is understandable” — did not satisfy Stephen C. Clark, the Utah ACLU's legal director. Last week, Clark sent a second letter to Cutler urging changes to the city's deal with the Church of Jesus Christ of Latter-Day Saints, as the Mormon church is officially known.

Artist's concep...
Artist's conception of how Main Street would look in future.

In his new letter, Clark argued that the city could not so easily hand over the control of a public forum to a religious institution. He noted that the “city's founders considered, and rejected, a plan to include this particular property in a large 40-acre church campus. From that time forward, including during the construction of the LDS Temple, this block of Main Street has been a public thoroughfare, and as such has borne substantial traffic in ideas as well as in pedestrians and vehicles.”

Clark maintained in his letter that a deal allowing the church to enforce standards of conduct in a place still open to the public could not pass constitutional muster.

“Accordingly, the ACLU is confident that the courts, if presented with the issue, will conclude that to the extent the new owner seeks to restrict the public's right of access to this block of Main Street it must do so subject to constitutional protections, and that the City has acted unconstitutionally to the extent it has agreed otherwise.”

Clark also said that the city's acquiescence to the church's enforcement of a code of conduct would violate the separation of church and state.

“That violation arises because the function of enforcing the restrictions on the public's right of access and passage — deciding who will be allowed to remain and who will be arrested for criminal trespass — rests not with the City but with the LDS Church,” Clark wrote. Citing a 1982 U.S. Supreme Court ruling in Larkin v. Grendel's Den, Inc., Clark wrote that “delegation of power ordinarily vested in agencies of government to a religious institution creates a substantial breach in the wall that separates the church from the state.”

Clark said that he hoped Cutler would work with the ACLU to find some neutral regulations that would satisfy the church. He said he had requested a meeting with the city attorney to discuss ways to avoid litigation. “Cutler's argument that the property is now private is way too simplistic,” Clark said.