This is an archived article that was published on sltrib.com in 2009, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
The LDS Church always has desired its Main Street Plaza to be an inviting, beautiful space for all to enjoy.
That's the problem. The privately owned plaza, with its wide promenade and gate-less entrance, is too inviting and appears too much like a public passageway.
Consequently, Salt Lake City Prosecutor Sim Gill said Wednesday he will not prosecute a gay couple cited for trespassing after they shared a kiss on the plaza.
"The two individuals believed -- albeit mistakenly -- that they had the right to be there," Gill said. "Fairness requires that either that property be not open to the public or you condition that [openness] in a way that the person who comes on understands that it is private property."
Salt Lake City residents Matt Aune and Derek Jones strolled through the plaza -- on their way home from a concert July 9 -- holding hands. The couple stopped for a smooch and were detained by LDS Church security guards for what the church called "inappropriate behavior."
The incident sparked a series of "kiss-in" demonstrations -- including two at the plaza -- as observers reacted to what many, including Aune and Jones, perceived as discrimination against a same-sex couple. (The LDS Church said the two were treated the same as "any couple.")
"We never thought we were doing anything wrong," Aune said Wednesday. "We're glad the city agreed with us."
The LDS Church bought a chunk of Salt Lake City's Main Street, between North Temple and South Temple, in 1999. Lawsuits erupted over whether the church could regulate behavior on the plaza, which retained a public right of way. Ultimately, the city agreed, in 2003, to swap that public easement for a west-side community center.
There no longer is a public right of way, or accompanying free-speech rights, on the plaza.
Gill said his decision not to prosecute this particular case "should not be viewed as limiting" the ability of the church to enforce its private-property rights on the plaza in the future.
"Going forward," he said, "working toward clarity [on the plaza] serves everyone's interests in this community."
Gill's analysis cites the lack of signs on the plaza that indicate visitors are entering private property "at will," meaning they can be ejected at any time for any reason.
"The signs will obviously change on the plaza," Wally Bugden, Jones' defense attorney said. "The vast majority of the public believed that there was a public corridor."
Gates around the plaza, akin to those encircling the Salt Lake LDS Temple next door, would make the plaza's private nature more clear, Gill acknowledged. But he did not recommend any specific solutions.
The LDS Church did not respond to questions about whether it will alter access to the plaza or change the way it advertises rules on the property, commenting only on the city's decision to drop the trespassing charges.
"While we feel the city had the necessary elements available for prosecution in this matter," spokeswoman Kim Farah said via e-mail, "the decision on whether to move forward or not rests with the city prosecutor."
The church released video footage of the couple's encounter with security guards to Gill's office. The prosecutor said the film lacked audio and did not show the now-famous kiss.
Aune has said the couple's display of affection was modest, but the church maintained the two "engaged in passionate kissing, groping, profane and lewd language, and had obviously been using alcohol."
Gill said the tape showed a "scuffle, but "it wasn't clear the level of force or the intensity. You saw the two parties were being separated."
Jones and Aune said they drew close to each other when approached by the guards. They were handcuffed. Jones was forced to the ground, they said, but a church security guard disputed the roughness to a responding police officer.
"I'll be avoiding Mormon Church property from here on out," Aune said. "This is where we walk away."
J.J. Clark, who organized the second "kiss-in" at the plaza, said he won't be planning another such rally. (But bloggers in Boston and New York are throwing a nationwide "kiss-in" -- on public properties -- Aug. 15. They expect one to happen in Utah's capital.)
"Salt Lake City has it right this time by deciding to drop the charges," Clark said, adding the city got it "wrong" when it sold the public space.
"Selling a part of Main Street, USA, anywhere to any religious organization," he said, "is completely absurd."
Tribune reporter Peggy Fletcher Stack contributed to this story.