On June 27, 2005, the last day of its 2004 term, the United States Supreme Court issued an important Establishment Clause ruling that supports the ACLU of Utah’s case challenging Salt Lake City’s decision to vacate the public easement on the Main Street Plaza.

In McCreary County v. American Civil Liberties Union of Kentucky, the Supreme Court found that the display of the Ten Commandments in two Kentucky county courthouses was an inappropriate government endorsement of religion. The Court was clear that in making its determination, it had to first examine the counties’ motivation, or purpose, for displaying the Ten Commandments, as well as the particular history of and context for the counties’ decision to post the document. The Court also held that the Establishment Clause forbids a government action that has a predominantly religious purpose even if a secular purpose also exists.

McCreary is relevant to the ACLU of Utah’s second lawsuit regarding Salt Lake City’s Main Street Plaza, Utah Gospel Mission v. Salt Lake City Corporation. In its complaint, which is now under consideration by the Tenth Circuit Court of Appeals, the ACLU of Utah argues that the circumstances surrounding Salt Lake City’s decision to vacate the public easement on the Main Street Plaza demonstrated that the city’s primary purpose was to protect a particular religious message, and was therefore a violation of the Establishment Clause.

Lawyers for Salt Lake City and the LDS Church have argued that the Tenth Circuit should not review the motivations behind the city’s decision to vacate the public easement. However, in McCreary, the Supreme Court clearly states that in potential Establishment Clause violations, it is constitutionally permissible, and indeed required, for courts to examine governments’ purposes for taking a particular action.

In the Main Street controversy, several city council members described the Main Street Plaza as “sacred.” One went so far as to state that “the sacred nature of the space … will never be consistent with time, place, and manner restrictions.” These comments are reflective of the LDS Church’s intense public relations campaign which was launched after the first Main Street case. In marked contrast to the original depiction of the plaza as no different from a public park, the LDS Church now referred to it as “… a place to contemplate God and not a place for confrontational and noisy demonstration.”

Also in McCreary, the Court specifically rejected the argument that if there is some secular purpose to a government action, then there can be no violation of the Establishment Clause. Rather, it is sufficient to show that the secular purposes are secondary. Salt Lake City and the LDS Church argue that because the city received LDS Church-owned property and funds to create a new community center in exchange for the public easement, that transaction has a secular purpose. The ACLU of Utah maintains that if there is a secular purpose, it is only secondary, and if one looks at the history of the exchange, it becomes clear that the predominate purpose was to create a private religious plaza in which the LDS Church could impose discriminatory restrictions on speech. The community center only created the false appearance that non-discriminatory secular interests were being advanced.

It is important to note that in Utah Gospel Mission, the ACLU of Utah does not argue that there is no constitutional way Salt Lake City could have sold city property to the LDS Church. We do maintain, however, that given the particular history and context of that transaction, Salt Lake City gave up its constitutionally required neutral position with regard to religion.

In reviewing Utah Gospel Mission, the Federal District Court used a simple private property analysis and decided that the property and funds for a community center provided a secular purpose that, in effect, did away with any Establishment Clause claims. The ACLU of Utah is asking the Tenth Circuit to comply with the McCreary decision and compel the Federal District Court to consider the history, context, and purpose surrounding the transaction and whether Salt Lake City did indeed fail to maintain the required government neutrality regarding religion.

Read the ACLU’s letter to the Tenth Circuit Court of Appeals about McCreary >>

Read the Supreme Court’s decision in McCreary v. American Civil Liberties Union of Kentucky >>