Mormons to Appeal Ruling on Use of Plaza

The Mormon Church asked the full U.S. 10th Circuit Court of Appeals on Wednesday to review a ruling by a three-judge appellate panel that the sidewalks of the church-owned Main Street plaza must remain open to free speech, even if it offends Mormon beliefs.

In the appeal, the Church of Jesus Christ of Latter-day Saints cited an earlier 10th Circuit case that it says conflicts with the Main Street ruling. The Main Street case should be reviewed by the full court to clear up the inconsistency, the church argued.

Church attorney Von Keetch admits that the odds of a successful appeal are slim.

“We think this is a case that presents the kind of question the court ought to hear,” Keetch said. “In pure statistics, the battle is uphill. We’re just taking it a step at a time.”

On Oct. 9, the 10th Circuit panel ruled that Main Street plaza sidewalks are traditional public spaces. The court said restricting free speech on the easements held by the city for public access was unconstitutional, even though the plaza was owned by the church.

It was the city’s job to regulate behavior on the public easements, the court ruled. But the city couldn’t create a “1st Amendment-free zone,” despite promises made to the church when the city sold the plaza, the three-judge panel ruled.

The disputed sidewalks run in front of the Mormon temple in the heart of downtown Salt Lake City and are landscaped and maintained by the church.

The church bought the tract from the city in 1999, transforming it into a plaza with fountains and flowers.

Church officials also outlawed smoking, sunbathing, bicycling and “engaging in any illegal, offensive, indecent, obscene, vulgar, lewd or disorderly speech, dress or conduct.”

City leaders also had granted the church exclusive rights to distribute literature and broadcast speeches and music on the block.

The three-judge panel struck down those restrictions as unconstitutional. Now the full 10th Circuit court will decide whether to review the case. If the court declines, the church could ask the U.S. Supreme Court to hear an appeal.

In the 1999 Denver case, the church said, the appeals court found that a “1st Amendment public forum does not exist on a secular plaza” formed when the city created a pedestrian plaza by closing a street that ran through the campus of the Denver Performing Arts Center.

Former American Civil Liberties Union attorney Stephen C. Clark, who continues to work on the case, said the church’s use of the Denver case isn’t surprising, but that the two plazas are strikingly different. He described the Denver plaza as a covered, elevated terrace that serves as an “extended lobby” for the Denver Performing Arts Center rather than a public thoroughfare.

The church filed its appeal a day after Salt Lake City Mayor Rocky Anderson said he would not rewrite the contract in which the city sold the plaza to the church while maintaining public access easements.