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Protest zone complaint dismissed by court

In a unanimous decision, the United States 10th Circuit Court of Appeals recently dismissed a complaint filed by the American Civil Liberties Union against Salt Lake City and the Church of Jesus Christ of Latter-day Saints.

The complaint claimed that the LDS Church's Main Street Plaza must remain a public protest zone and the citys sale of the property to the Church was a sham transaction in violation of the establishment clause.

The 10th Circuit decision sets a precedent for the proposition that cities may sell property to whomever they wish, including churches. Also all property owners, including churches, cannot be deprived of the rights to control activities on the properties, pointed out the Utah Taxpayers Association.

Specifically, the federal court of appeals ruled that the plaza is not a public forum and the citys sale of the easement to the LDS Church was not a sham transaction.

In addition, the federal justices specified that the "plaintiffs' unsupported allegations of pretext are insufficient for us to ignore the numerous legitimate reasons for the transaction," noted the independent public policy organization.

In several respects, the court's analysis tracked the arguments the Utah Taxpayers Association, the Sutherland Institute and the Utah Association of Realtors made in an amicus brief supporting Salt Lake City and the LDS Church, indicated the independent organization.

The amicus brief argued that transaction followed the U.S. 10th Circuit Court's previous admonition that the public forum easement could be extinguished by sale of the city's interest in the plaza to the church, thereby making the property entirely private.

The city and church could conclude that, by choosing the option of permitting free speech or relinquishing the easement so the plaza becomes entirely private, the parties could avoid further litigation involving potential constitutional violations, indicated the appellate court.

The complaint "contains no well-pleaded factual allegations that suggest a sham. It is not surprising that the church, like any other property owner, would take steps to preserve its quiet enjoyment," stated the federal appellate court decision.

Property rights cannot be cast aside without raising serious questions under the United States Constitution. Plaintiffs have no rights of free speech on the church's private property. To hold otherwise would violate the private property rights, the free speech rights and the freedom of religion the United States Constitution secures for the church and all U.S. citizens, argued the amicus brief.

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