Daily Development for Wednesday, October 5, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri firstname.lastname@example.org
CONSTITUTIONAL LAW; FREE SPEECH; PUBLIC FORUM: City may transfer public right of way to private church for adequate consideration and thus negate the character of the right of way as a public form, even if the premises continues to be used by the prublic pursuant to the new private owner’s permission.
Utah Gospel Mission v. Salt Lake City Corp., 2005 WL 2421618 (10th Cir. 10/3/05)
In 1999, the City of Salt Lake City sold a major downtown street to the Mormon Church, which installed in the street a an “ecclesiastical park” - a landscaped area pedestrian walkway lined with religious displays. The court in the current case characterizes the development as a “Plaza” “which the City hoped would promote downtown pedestrian traffic and stimulate business.” The Church paid $8 million for the property and gave to the city an easement insuring that the property would always provide public pedestrian access between the two cross streets intersecting the property.
A group of non-Mormons who might have preferred that public property not be turned over to the Mormon Church for purposes of a one-sided religious display sued to establish that the public easement would include the opportunity for these groups to deliver their messages (sometimes antagonistic to Mormonism) in the same area. This lawsuit was successful, as reported in First Unitarian Church of Salt Lake City v. Salt Lake City Corporation, 308 F.3d 1114 (10th Cir. 2002), the DIRT DD for 5/27/03), where the court held that the public easement reserved in the private property could not be controlled in such a way as to prevent the exercise of Constitutional Free Speech rights, even if the parties to the easement agreement so contracted. This was because the easement area substituted for an existing public access and was carrying out the function of a public forum.
Not surprisingly, the City and the Mormon Church sought ways to accommodate the Church’s desire to counter hostile speech exercises in the heart of its religious display area (which was adjacent to two immense Temples the Church maintained in the downtown neighborhood. The new plan involved the City’s sale of the easement to the Church in exchange for $500,000 and the construction of a major recreational facility for the city. The court characterized the value the Church paid for the easement as “more than ten times its value.” The City retained the right to maintain utilities under the ground and had a right of reentry if the Church failed to use the area as a “landscaped space,” but there was no requirement that the Church use the property for an open pedestrian thoroughfare or that the city had any rights to maintain a thoroughfare.
Also not surprisingly, the same group of plaintiffs challenged this plan in court, arguing first that the property, having been a public forum, should be viewed as retaining its character as a public forum, even if it passes into private hands. It pointed to the U.S. Supreme Court precedent in Marsh v. Alabama, where the court held that a “company town” constituted a public form although in private hands. But the 10th Circuit noted that Marsh had been cut back in subsequent cases, perhaps most motable the Lloyd Center case, where the court held that a shopping center was not a public forum required to provide public speech rights (thus rejecting the Pruneyard doctrine which continues to be the law under state constitutions in about ten states (but not Utah.)
Plaintiffs argued that the motives of the City and Church in transferring the easement back to the city were transparent - to get to the same result of a downtown street being used as a permanent religious display. They claimed that if the property still functioned as a public thoroughfare, then it retained its public forum status even if there was no public easement. The court rejected this notion, concluding that the changes made by the Church clearly differentiated it from an ordinary public street (in fact it changed from vehicle access to pedestrian, among many other things) and therefore there could be no argument that the area was a public street under a different label. It did acknowledge, incidentally, that some authority involving situations in which cities attempted to maintain segregated public facilities by “privatizing” them did stand for the principle that where property continues to serve the same purpose, a “private owner” label will not alter its fundamental p ublic character. But it saw the issues as different here, where the new use of the property, altbeit still a right of way, was significantly different than before.
The court also rejected the argument that the retained right of reentry rendered the space a public forum. Recall that the right of entry was triggered if the Church altered the landscaped character of the space, not if it prohibited public use or access. Consequently, there could be no argument that the City was obtaining an easement in different clothing. A right of reentry itself, the court held, “does not constitute an actual estate,” and that right, in and of itself, did not stamp the Church property as public in character. The court noted that a right of reentry is not a compensable interest in the event of a taking under the United States Constitution.
The fact that the property originally had been a public forum, the court held, did not irrevocably stamp it with that character. Otherwise public agencies would never be able to change their property or sell it for private use.
The court had even less difficulty with the claim that the arrangement violated the Establishment Clause because the government was engaged in supporting religious activity. It noted that the government argued that it was obtaining considerable public benefit from the installation of the “ecclesiastical park” in terms of increased pedestrian traffic and tourism in the downtown area, and that, in addition, the Church paid in excess of the fair value of the property it obtained.
The court did have to tap dance a little around the standard of Lemon v. Kurtzman, 403 U.S. 602 (1971), that “the court must consider not only whether the government is actually acting neutrally but also whether a reasonable observer, reasonably informed as to the relevant circumstances, would perceive the government to be acting neutrally.” The court stated that the project satisfied the test. “The government is doing nothing to advance religion, but merely enables the LDS Church to advance itself.” Right . . . . (Maybe the test is the “reasonable Mormon” test.)
A third possible bases for finding an Establishment Clause claim is that the government and the church are “excessively entangled.” The court noted that in this case, following sale of the easement, the government and the church are less entangled than before. Of course, this is simply from the perspective of the instant moment, and does not take into account the entanglement that began when the entire “ecclesiastical park” notion was first introduced and negotiated through hours and hours of meetings and hearings and piles and piles of paperwork to carry out this unique activity. Is the fact that the entanglement already happened before it was challenged sufficient to avoid application of this test?
Comment: Life being what it is, we probably shouldn’t worry too much about the City of Salt Lake City permitting this very important presence in its city to have a little leeway in promoting itself, even through the closure of streets and the installation of exhibits. Have other cities done less to facilitation (and even plan for and support) the construction of major cathedrals and synagogues? The editor is just having fun poking holes in the “pious” pronouncements of the court that something is going on that truly has a secular purpose. There’s a religious purpose here - but at an institutional level that the editor is wiling to accept as “constructively secular.”
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