A Place of Protest or PeaceElizabeth A. Sewell May/June 2003
Illustrations by David Klein
Should the Roman Catholic Church be forced to allow hecklers or protesters in the plaza of St. Peter's Cathedral? Is it reasonable to expect a cloister to open its gardens to sunbathers? Cemeteries, courtyards, and gardens at religious sites are designed as oases of peace and reflection in a turbulent world. Because of their distinctive nature, such sites often also become popular tourist destinations.
The Main Street Plaza in Salt Lake City is no different. Temple Square, where the plaza is located, is Utah's biggest tourist destination, bringing in 5 million visitors to Salt Lake's downtown each year. The 660-foot stretch of flowered gardens and fountains is enjoyed by tourists, shoppers, workers on break, and wedding parties. The plaza unites two heavily visited properties of the Church of Jesus Christ of Latter-day Saints and forms a unified central core of LDS Church property, surrounded by over one mile of public sidewalks and the rest of Salt Lake's downtown.
In the current controversy over the use of the plaza, it is useful to remember that the plaza was not a recent innovation, nor a gambit on the part of the LDS Church to take over Salt Lake City. City planners, as part of a 1961 comprehensive downtown revitalization plan, proposed deeding the Main Street Plaza land to the LDS Church if the church agreed to landscape the property and provide underground parking. The idea was to create a "visual anchor" for the downtown that would help beautify the area and funnel tourists into downtown businesses. After more than 40 years of discussion and thought, the Church of Jesus Christ purchased the block of road for .1 million.
It is also useful to remember that the idea of closing a block of street was not novel. Since 1970 Salt Lake City has closed through sale or auction approximately 120 streets or parts of streets. Nor was the idea of closing a street next to a religious building unique–some of the road closures were designed to assist in the maintenance or development of Catholic, Lutheran, and Baptist facilities.
Why then is the Main Street Plaza so controversial? Much has been said about free speech, "getting what one bargained for," and the restrictions the Church of Jesus Christ has tried to place on protests in the plaza. The limitations on the activities of visitors to the plaza were extensively debated during the negotiations process. The church and city wanted to ensure public access to the property, but agreed that the LDS Church should not have to pay .1 million for the privilege of maintaining and keeping up an otherwise public park. To this day the negotiators who were on both sides of the dispute still agree that part of the intent of the deal was to allow the LDS Church to maintain a peaceful atmosphere through restrictions on the activities and speech of those who wanted to use the plaza.
So where is the dispute? Problems arose concerning the Main Street Plaza when individuals and groups wanted the city to retain greater rights that would allow for protesters on the plaza. These groups brought up their concerns during the months of public meetings and hearings concerning the deal, but, as often happens in the democratic process, they were outvoted. Since this one-block stretch of Main Street had never been a significant protest site, and over one mile of public sidewalk around the church property remained, these arguments did not carry the day.
Not content with that result, several groups brought suit against the city, arguing that the city's retention of a public easement over the property meant that the city retained a public forum where the full scope of the First Amendment would be effective. This was not the intent of the drafters–in fact, the deed itself states: "Nothing in the reservation or use of this easement shall be deemed to create or constitute a public forum, limited or otherwise on the property." The best legal thought of lawyers of both parties concurred that this was a constitutional interpretation of the law.
The Tenth Circuit Court of Appeal, however, thought differently. In a novel legal opinion, the court held that the easement did leave the city with a public forum and the strict terms of the easement were thus unconstitutional.1 Many municipalities and landowners have expressed concern at this result, as it undermines the sale of land when cities reserve easements, as they often do.2
In an unfortunate legalistic result, the rest of the purchase agreement remained valid. The net effect is that the Church of Jesus Christ has had to pay .1 million to provide a forum for those who would disrupt wedding parties, sunbathe next to reflecting pools, or heckle passing tourists.
Even though both sides realized the importance of the atmosphere issue to the church and that this had been seen as a "deal-breaker," the agreement had a boilerplate severability clause. These clauses, which are routinely placed in contracts of all sorts, state that if one provision of the agreement is unconstitutional or illegal, the rest remains valid. This keeps a major multimillion-dollar deal from becoming unraveled for small technical drafting errors. Those who opposed the deal in the first place have delighted in this result, insisting that the obvious incongruence of paying .1 million to provide a flowered platform for protests was "just what the church bargained for."
Press coverage has tried to make this out as an issue that pits Mormons against those of other faiths, or those who favor free speech against those opposing it, but the reality is much more prosaic. The simple problem is what to do with an unexpected and unusual court decision and a badly drafted agreement that clearly no longer reflects the original plans of the parties.
So what next? In its decision, the Tenth Circuit suggested that the terms of the easement it struck down could be "altered or eliminated by the involved property owners." The current mayor and the LDS Church have been in negotiations over the future of the easement, but have not yet reached a result. As this article went to press, it appeared that the LDS Church would trade two acres of land in another area of Salt Lake City to be used for a needed community center in exchange for the city's relinquishing the easement. Public access would still be preserved through a reverter clause, but the church could finally use the Main Street
Plaza as city planners had intended in 1961. Perhaps one day soon the Main Street Plaza will become an oasis of peace for workers and tourists in Salt Lake City's busy downtown.
Elizabeth A. Sewell is associate director of the International Center for law and Religious Studies at the J. Ruben Clark Law School, Brigham Young University, Salt Lake City, Utah. Her comments on the case, while based on considerable legal experiences, are her own and not an official statement of her church.
1 First Unitarian Church of Salt Lake City v Salt Lake City Corporation, 308 F.3d 1114 (10th Cir. 2002).
2 Ibid.The city was supported by amicus curiae briefs from the International Municipal Lawyers Association, the National League of Cities, the National Association of Counties, and a wide array of religious and civic groups.