Handicapping religion in political wars

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Religious adherents risk diluted political rights in a landmark case pending in the U.S. District Court for the District of Utah. In Utah Gospel Mission, et al vs. Salt Lake City Corporation, et al., filed on Aug. 7, 2003, the American Civil Liberties Union of Utah and the national ACLU are insisting the sale of a downtown easement by Salt Lake City to the Church of Jesus Christ of Latter-Day Saints (LDS Church) violates the First Amendment's separation of church and state.

The muscular political mobilization by Mormons to champion the easement sale for religious objectives of the LDS Church is constitutionally challenged. But if success in the political arena occasioned by religiously motivated lobbying is taboo, then believers would be handcuffed in exercising their First Amendment right to petition government for redress of grievances. A broad array of laws that have been politically engineered by religious organizations would be under a cloud, such as restrictions on abortion, homosexual marriages or the right to die.

In 1999, Salt Lake City sold to the LDS Church a portion of Main Street that connected a residential neighborhood with a business district. On adjacent blocks owned by the LDS Church were the Mormon Tabernacle, the Salt Lake Temple, and church administration buildings, making Temple Square a prime tourist attraction.

The city retained an easement for pedestrian access and passage, but excluded First Amendment activities -- for example, distributing literature or picketing against Mormon practices or precepts. At its own expense, the church reconstructed Main Street and sidewalks into an attractive plaza, which fits seamlessly into its downtown campus.

The U.S. 10th Circuit Court of Appeals held the speech limitations in the city's easement unconstitutional in First Unitarian Church of Salt Lake City vs. Salt Lake City Corp. (2002). The court of appeals explained: "If it wants an easement, the city must permit speech on the easement. Otherwise, it must relinquish the easement so the parcel becomes entirely private."

Mormons then launched a tireless political campaign with Salt Lake City voters and leaders to effectuate a purchase of the easement by the LDS Church. A major objective was to restrict Main Street plaza speech and activities to advancing rather than foiling the church mission. In the past, for instance, Utah National Organization for Women had actively demonstrated there against the church's positions on equal rights for women and abortion.

The Mormons employed untroublesome tactics that are staples of political life to work through the City Council and grass-roots lobbying to obtain the support of Mayor Ross C. Anderson for an unrestricted easement sale. According to the complaint in Utah Gospel Mission: "Through the intercession of senior LDS Church officials and the influence of LDS Church-owned media, the [Salt Lake City] mayor's decision [to comply with the 10th Circuit] decision was widely criticized and came under attack from many different quarters." During an Oct. 21, 2002, advisory group meeting, Presiding Bishop Burton formally requested the mayor to relinquish the city's easement to reinstate speech, conduct and dress restrictions. The mayor proposed an alternative, which provoked an aggressive counter by Mormons.

The complaint alleges: "LDS officials widely distributed corporate portfolio report-quality information packets to leaders of other faiths, business leaders, community council members, and many others in Salt Lake and Davis Counties." Church leaders preached a religious-like duty to support an easement sale, and insinuated political reprisals if the mayor continued in opposition.

The all-LDS seven-member City Council was sparked by the Mormon lobbying campaign and otherwise to take up cudgels against Mayor Andersen. The latter retorted by accusing council members of bias in favor of Mormons; declaring he would not yield for the sake of expediency; and maintaining that to do so would be illegal, unethical and cynical.

But on Dec. 16, 2002, the mayor ultimately capitulated to an easement sale in exchange for 2.17 acres of LDS Church-owned land on the City's Westside and other consideration. The church was endowed with the absolute right to control freedom of expression there.

The ACLU lawyers seek to void the sale as contrary to the establishment clause: "By giving into the church's demands in a way that so directly advances the interests of the church... the city's actions 'cross[ ] the line between permissible accommodation [of religion] and impermissible establishment [of religion]... .' The mayor's decision to abandon the easement is directly attributable to the pressure applied by the LDS Church and the divisiveness the church threatened the community with if the Mayor did not accede to its demands."

But religious adherents and organizations enjoy the same right under the First Amendment to lobby for government action without constitutional taint as does the ACLU. Laws are not suspect simply because they accord with a religious canon, like the Sunday closing laws sustained by the Supreme Court in McGowan vs. Maryland (1961), or restrictions on publicly funded abortions blessed in Harris vs. McRae (1980). Nor are constitutional eyebrows raised by facilitating religion through legal exemptions, such as property taxes, employment discrimination prohibitions, or anti-drug or alcohol restrictions. All Salt Lake City has similarly done with the sale of its easement is to accommodate the LDS Church mission to obtain municipal property and a community center.

If the ACLU lawyers succeed in Utah Gospel Mission, time-honored church-state precedents will be shaken and the voice of religion in politics will become inaudible.

Bruce Fein is a founding partner of Fein & Fein.