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Utah's citizens, of late, have been at the center of an unusual controversy. I say unusual not because of the uniqueness of the issues at play but because of the intensity of a controversy
that has brought illumination to the intersection of politics, religion and law. We are all accustomed to the seemingly inexhaustible stream of Mormon/Anti-Mormon, "love it or
leave"/"we don't have to do either" polemics, usually in the form of letters to the editor. Regrettably, these tend to be tedious and predictable in the extreme on both
sides, utterly devoid of wit or elegance, typically having the subtlety and style of a hurled water balloon or rotten egg and adding nothing to reasoned discourse. But, they are, in
addition to being an irritant, a constant reminder of the tension that is part of the fabric of our community, that for many this is very much a place of "us" and
"them" of "nons" and "non-nons."
Look north up Main Street and see, as if it were a power point pictograph, a visual representation of the roots of
the controversy. The Temple on the west and the Church buildings on the east, including the former Hotel Utah, cast their shadows over Main Street. It is as if Main Street is under
surveillance. In this context, it is important to remember, as apparently our city government did not, that "Main Street" in this country is not so much a geographical
designation as it is a symbol, a shorthand expression of an article of political and social faith. The term resonates a sort of Norman Rockwell, four freedoms ideal. Main Street is
something we hold in common; it is where we stand free and equal; it is not for sale; it belongs to all of us.
Aye, there's the rub. Something was sold; but just what was it that
was sold? As the background and analysis of the transaction has emerged in the print, audio and visual media one developed an impression that the transaction was above all not a
"transparent" or well-illuminated deal. Clearly, the expectations of those involved directly and on the periphery were widely different. There was to be a "Main Street
Plaza," owned by the Church but subject to a public easement belonging to the City and all citizens. Just what did this mean?
As the plaza was completed and the Church began
to regulate activities thereon, it soon became apparent that differing expectations were causing problems. It also became quite apparent to all that peace had not come to the Valley.
Protestors were hustled away; the Church was not going to allow disparaging words to be heard on that small portion of the lone prairie. Whatever the expectation of others might have
been, it became clear that the Church had not contemplated, and would not allow, Main Street Plaza to be a forum for robust, ecumenical debate. There were those that felt that they had
been duped and that the Church and the City government had pulled or conspired to pull a fast one on them, notwithstanding the fact that the Mayor at the time of the transaction was not
affiliated with the Church, nor were all members of the City Council. Inevitably, a legal action ensued.
The Law
The United States District Court granted summary judgment
to the defendants, finding that the character of that block of Main Street had been transmogrified. The Tenth Circuit reversed. Taken at face value, the legal analysis and decision of the
Tenth Circuit is unremarkable, hardly a cutting edge decision. There are, however, aspects of it which are interesting. Thus, although the legal analysis clearly follows from the face and
precise language of the warranty deed, there is nonetheless a suggestion that the Tenth Circuit believed that the public may well have been misled by the commentary that preceded the
final deal. This is most evident on page 8 of the Opinion wherein the Court stated:
While the Church now refers to the area as an ecclesiastical park, prior to the sale when asked how it would further the public interest, the Church variously described the proposed
Main Street Plaza as a "pedestrian friendly area," "a funnel to the Crossroads and the ZCMI Center shopping malls as well as the remainder of the downtown business
district," and a "downtown pedestrian plaza," and stated the plaza would "provide a public environment," "enhance the urban fabric of the downtown
area," "emphasize Main Street as a primary pedestrian walkway," and "assist Main Street, which is the heart of the shopping area, to become the most pedestrian
oriented street in Salt Lake City."
Id., Vol. IV at 1584-89.
It is difficult to think other than that the Tenth Circuit may well have been influenced, although such influence hardly appears necessary to a
decision, by the notion that the public discussion prior to the final deal being made may have been misleading. Thus, the Tenth Circuit also noted that although there was a possibility of
reverter in case the public purposes of the easement were not carried forward in the warranty deed, a provision describing the intended use as rather like a "public park" or
otherwise describing proposed public uses was omitted from the final form of the deed.
Apart from this bit of flavoring, the legal analysis was straightforward. The Tenth Circuit
first noted that, in granting summary judgment for defendants, the district court had essentially got the case backwards. That conclusion is clearly expressed when the Tenth Circuit
noted, "as we previously stated, the district court considered the religious purpose of the plaza when it should have considered the purpose of the easement" (Opinion, p. 32).
That was coupled with the statement that "we hold here that the City, not the Church, has responsibility for regulating speech on the easement" (p. 38). In fact, the hallmark of
this opinion is its constant reference to the fact that it is the actions of the City which are at issue here, not the actions of the Church. It was "the easement terms themselves
[that] are unconstitutional" (p. 14). It was the City that either drafted or agreed to the terms of the easement, contained in Section 2.2 of the Special Warranty Deed and
Reservation of Easement, that were found unconstitutional. (Whether the rights retained were characterized as "non-possessory property rights" or a "governmental
burden" on otherwise private property was to the Tenth Circuit a matter of indifference.)
Also, the importance of the fact that only the Church would be allowed to exercise rights of free speech to the exclusion of all others on Main Street Plaza cannot be overstated. It is at the heart of this opinion. The most stark statement probably is the statement that "protecting the Church's expression from competition is not a legitimate purpose of the easement or its restrictions." (p. 29). That concept resonates elsewhere in the Opinion - "our fealty to the concept of a marketplace of ideas in religion as well as other fields has been the hallmark of our society" (p. 38); "the speech of others does not, as a matter of law, infringe on an individual's own free speech rights" (p. 39).
If we return to our initial concept of "Main Street" or for that matter "Main Street Plaza," I think it is clear what the Tenth Circuit is telling us. The
Tenth Circuit is telling us that geographical Main Street, a piece of land, may be sold but symbolic Main Street, a concept symbolic of a free society, may not be sold. No public entity
can give a church, a political body or anybody else a monopoly on exercise of political, religious or personal rights and freedoms on places that are "public" in character. If,
in fact, there is to remain a public pedestrian walkway through and across the former "Main Street," to that extent it remains symbolic Main Street and is free and open to the
opinions of all.
It is also reasonably clear from the Opinion what could have and one assumes still can be done. The citation and brief discussion of the Tenth Circuit cases in
which the public character of former public property was changed indicates what the City could have and still can do. It can simply abandon the pedestrian easement by selling that to the
Church. (There may be a nice question of whether or not underground easements for utility purposes could be maintained without maintaining a public purpose, but the tenor of the Opinion
suggests that retaining that kind of an easement would not maintain the type of public character which traditionally allows for and sponsors first amendment expression rights.)
In
the final analysis what can't be done is maintain the pretense and expression of a public thoroughfare while simultaneously granting a monopoly of free speech rights to one person or
group. If the pedestrian easement is extinguished and access to the former Main Street is only by sufferance of the Church with the elimination of any pretext that what remains is
"public," it is likely that the problem disappears. I say "likely" because of the unusual history of the chain of events that action would sanction and the fact that
talismatic invocation by use of the term "private property" is not necessarily sufficient to ward off all claims of right of first amendment expression.
Unity
The Tenth Circuit Opinion created, and continues to create, continual churning of public and behind-the-scenes private activity. The Church on its part has mounted an unusual and massive
public relations campaign, even going to the extent of President Hinckley's direct involvement by way of a written communication generally distributed. At the City level, the response
appears to be chaotic. At various times, the City Council has appeared to be pitted against the Mayor, even to the extent of hiring its own legal counsel for advice on what actions it
(the Council) might take should it choose. The Mayor has been on all sides of the controversy from time to time and now appears most inclined to participate in a resolution of the matter
which would allow the Church to purchase the easement and assume complete control of the plaza as private property. The plaintiffs in the litigation have indicated a willingness to press
on with further litigation if the easement is abandoned and sold.
As the Church in its public relations campaign mustered testimony and presented its case, its cornerstone was the
notion that an "ecclesiastic park" had been created on "private property." The Church continues its obdurate refusal to acknowledge that the "private
property" was burdened by a "public easement," a bundle of property and constitutional rights that we all learned about the first year of law school. To be sure, the
Special Warranty Deed and Reservation of Easements (the "Deed") quite plainly grants the Church the power to control all activity on that property, and puts the
"rights" of all others, other than, one presumes, the right to walk silently through the Plaza, eyes cast downward, at sufferance to the dictates of the Church.
In
retrospect, that the Church would take this position is hardly surprising. After all, would the Church spend its funds to provide an attractive forum for those who seek to criticize it?
Our common experience and intuition would certainly suggest not. One of the sad truths about those who most actively exert their First Amendment rights is that a significant number are
real jerks. (Lest you jump down my throat, it is also true that many are not and are measured and calm in manner, even if not in message.) My point here is simply that institutions such
as the Mormon Church that are often the subject of public attack and criticism are well aware that some will be abrasive, aggressive and unpleasant. Critics and demonstrators are the most
likely to show up at one's door step. Knowing this, the Church undoubtedly did expect that it was not creating a sort of Hyde-Park corner for its critics.
Although
not discussed by the Tenth Circuit, the transactional documentation apparently provided that if the restrictions imposed by the Church did not pass constitutional muster, the deal still
stood and an easement would exist with such restrictions as were constitutionally permissible. (This seems a little at odds with the "reverter" provisions of the Deed.) Thus,
the Church apparently did accept the risk that its assessment of constitutional issues might be wrong. The Church does not presently admit to this, or recognize the constitutional and
property characteristics of a public easement.
With respect to the City of Salt Lake, it is rather more difficult to determine what it or its various representatives and spokesmen
believed was the nature of the bargain. There may well have been some mis-assessment of applicable law as regards to the restrictions that could be placed upon a "public
easement." There may have been some misapprehension as to how the Church would govern Main Street Plaza. But it is clear those acting on behalf of the City of Salt Lake were willing to allow the Church to impose such restrictions as it chose. That is clear from the deed, if not the public pronouncements surrounding the original deal.
It appears that those who were not official spokesmen of the City, but rather were involved in the process as outside observers and monitors, may have an expectation that the
Church would impose "reasonable time, place and manner" restrictions. Although it is not clear, there is a suggestion in the written, post hoc, "evidence" that
the transaction was at least impliedly justified on that basis. Certainly, the Tenth Circuit came to that conclusion. See infra. In sum then, it does appear that although there
might have been differing expectations as to how the Church intended to govern the new Plaza, the final form of the Deed approved by the Mayor and City Council, allowed the Church to
impose any limitation it chose, whether the limitation be constitutional or not.
Unless the Mayor changes his mind again, it appears that after due consideration, the easement will
be "sold" by the Mayor on behalf of the City after it and its public purpose have been formally abandoned by the City Council. This will allow the Church to take complete
control over the plaza, notwithstanding a report of the planning commission to the contrary and occasional statements by the Mayor that he might prefer reasonable time, place and manner
restrictions. What this author takes issue with is how this transaction is being promoted. There is now an organization termed the "Alliance for Unity," a private non-elected
entity of local power brokers, that is out to support a new transaction on the basis of compromise and to bring "unity" where there has been bitter divisiveness over the issue.
The new transaction envisions the Church trading the easement for land on the west side of the City for a "unity" center with additional funding being added by the
"Alliance."
It is not clear whether, particularly within the boundaries of Salt Lake City, there is or is not acceptance of this so-called "compromise" that is
meant to lead to unity. The cynical are quick to point out that this has nothing to do with a compromise as to the fundamental issue of whether Main Street, or any portion of it, should
be parochial in nature. The Church gets what it wants, no compromise. Only the price to be paid for such absolute control has been increased. On the other hand, there appear to be others
who may or may not have an axe to grind but see the result of all this as far more beneficial to the City than would have been either the status quo ante or a Main Street plaza that is a
magnet for anti-Mormon protest. Clearly, it is not only members of the Church who believe that the proposed solution is a good one.
What is disheartening is our public inability to
come to grips with the reality that there is not and never will be unity on this issue. There are those who are of the opinion that the City should have never sold a part of Main Street
to the Church. A west side unity center does nothing to solve that. This solution only gives the Church what it wanted, and maybe thought it bargained for. It will not create unity; it
will probably inflare division.
Having said that, it does not mean the solution is a bad one. It just needs to be promoted on its merits, not as a faux unification. The solution
can repair some of the damage, but not all the damage. Whether the initial transaction was wise or unwise is or will be debatable, and should be. If, however, we deal with the present
situation, selling the easement is not that bad under the right conditions. The Church should build formidable barriers and proclaim the former easement "private property." The
new square should not be called "Main Street Plaza." "Temple Rectangle" might be nice.
We need to unhook the private physical property from the public symbol of
a "Main Street" open to all. Make it clear that what is being sold is merely asphalt, not a symbol of patriotic freedom and open debate available to all. Those who wish to
exercise first amendment rights can move a few hundred feet south or north. Their audience will not be diminished. The Church already owns everything surrounding that piece of property.
If we can rid ourselves of the symbolic problem that this part of "Main Street" is no longer "Main Street," the result is palatable.
As for unity, forget it.
There always will be a substantial number who believe the Church has too much power. They may be right. But, so what, so long as that power is subject to the rule of law? As is often the
case, there is not going to be an answer to the Main Street issue that is acceptable and "unifying." The citizens of Salt Lake City do not all share a common, monolithic body of
history, culture and religion. Religiously and politically we are fragmented, diverse and complex. We sing in different voices, not always in harmony. But we all must commit to living by
a rule of law interpreted by an independent judiciary else our differences so fracture the community that we can no longer live with each other.
Specific and discrete controversies
need resolution whether that resolution is acceptable to all or not. Pervasive disagreements at the conceptual level are often not susceptible of resolution nor should they be. The best
we can hope for is a common commitment to abide by the referee's decision once it is made final.
If the transition of Main Street from public to completely private had been
transparent, and had the public been told that the Church was going to be vested with complete control of residual "Main Street," that would have been a different matter. It
would be a controversial decision, which it should be. There would not be unanimity. Perhaps the deal would not have been consummated; perhaps it would have. There is nothing at all wrong
with either result if the process is transparent.
What is unacceptable are elected public officials who are willing to promote the notion that an important new "public"
place is being created that will be part of the fabric of a revitalized Main Street - open to the public like any other public place or right of way - and simultaneously sign off on a
document that gives the Church the exclusive right to determine what is said and who says it on the "public" easement. As citizens, our quarrel is with the public officials
perpetrating such a charade, not with the Church.
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