## F I L E D United States Court of Appeals Tenth Circuit 

### October 3, 2005

Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UTAH GOSPEL MISSION; FIRST UNITARIAN CHURCH OF SALT LAKE CITY; UTAH NATIONAL ORGANIZATION FOR WOMEN; LEE J. SIEGEL, Plaintiffs - Appellants,

v. SALT LAKE CITY CORPORATION, a municipal corporation; ROSS C. “ROCKY” ANDERSON, Mayor of Salt Lake City, in his official capacity; CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, Defendants - Appellees.

--------------------- SUTHERLAND INSTITUTE, UTAH TAXPAYERS ASSOCIATION, UTAH ASSOCIATION OF REALTORS; THE ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL, CHRISTIAN AND MISSIONARY ALLIANCE; COLORADO CATHOLIC CONFERENCE; COMMUNITY OF CHRIST; ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; EVANGELICAL LUTHERAN No. 04-4113- 2 -

CHURCH IN AMERICA; FIRST CHURCH OF CHRIST, SCIENTIST; GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS; GENERAL COUNCIL ON FINANCE AND ADMINISTRATION OF THE UNITED METHODIST CHURCH; INTERNATIONAL CHURCH OF THE FOURSQUARE GOSPEL; ISLAMIC SOCIETY OF COLORADO SPRINGS; NATIONAL ASSOCIATION OF EVANGELICALS; NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE USA; ROCKY MOUNTAIN DISTRICT OF THE DESERT-MOUNTAIN CONFERENCE OF THE FIFTH EPISCOPAL DISTRICT OF THE AFRICAN METHODIST EPISCOPALCHURCH WORLDWIDE; THE NETCHURCHES SERVING TOGETHER; INTERNATIONAL MUNICIPAL ASSOCIATION; NATIONAL LEAGUE OF CITIES; NATIONAL ASSOCIATION OF COUNTIES; U.S. CONFERENCE OF MAYORS, Amici Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D.C. No. 03-CV-688-DAK)- 3 -

Mark J. Lopez,(Sharon McGowan, American Civil Liberties Union Foundation, Inc. and Margaret Plane, American Civil Liberties U nion of Utah Foundation, Inc., Salt Lake City, Utah, on the brief), New York , New York, for Plaintiffs - Appellants. Steven W. Allred (and Boyd A. Ferguson, Assistant C ity Attorney, on the brief), Salt Lake City, Utah, for Defendants - Appellees. Alan L. Sullivan and James D. Gardner, Snell & Wilm er, L.L.P. and Von G. Keetch and Alexander Dushku, Kirton & McConkie, on the brief, Salt Lake City, Utah, for Defendant-Appellee Corporation of the Pre siding Bishop of the Church of Jesus Christ of Latter-Day Saints. L. Martin Nussbaum and Eric V. Hall, Rothgerber, Jo hnson & Lyons, L.L.P., Colorado Springs, Colorado, for Association of Chri stian Schools International, Christian and Missionary Alliance, Colorado Catholi c Conference, Community of Christ, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Evangelical Lutheran Church in America, First Church of Christ Scientist, General Conference of Seventh-day Advent ists, General Council on Finance and Administration of the United Methodist Church, International Church of the Foursquare Gospel, Islamic Society of Colora do Springs, National Association of Evangelicals, National Council of th e Churches of Christ in the USA, Rocky Mountain District of the Desert-MountainConference of the Fifth Episcopal District of the African Methodist Episcop al Church Worldwide, and Net-Churches Serving Together, as Amici Curiae. Maxwell A. Miller, Parsons, Behle & Latimer, Salt L ake City, Utah, for Sutherland Institute, the Utah Taxpayers Associatio n, and the Utah Association of Realtors, as Amici Curiae. David Parkhurst, National League of Cities, Gene C. Schaerr and Ryan D. Nelson, Sidley, Austin, Brown & Wood, L.L.P, and Henry W. U nderhill, Jr. and Lani L. Williams, International Municipal Lawyers Associati on, Washington, D.C., for National League of Cities, International Municipal Lawyers Association, National Association of Counties, and U.S. Conference of May ors, as Amici Curiae.

Before KELLY , BRISCOE , and LUCERO , Circuit Judges.- 4 -

KELLY , Circuit Judge.

Plaintiffs-Appellants Utah Gospel Mission, First Un itarian Church of Salt Lake City, Utah National Organization for Women, an d Lee J. Seigel appeal the district court’s denial of a preliminary injunction and grant of the motion for dismissal for failure to state a claim upon which r elief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) made by De fendants-Appellees Salt Lake City Corporation, Ross C. Anderson, and Corpor ation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Background In 1999, Salt Lake City (the “City”) sold a block-l ong section of Main Street to Appellee Corporation of the Presiding Bis hop of the Church of Jesus Christ of Latter-Day Saints (the “LDS Church”). Th e City allowed public expression on Main Street before it was sold. MainStreet was sold to enable the Church to build a Plaza, which the City hoped wouldpromote downtown pedestrian traffic and stimulate business. The Pla za’s objective attributes and primary purpose are different from the former Main Street. For example, the walking surface differs from that of an ordinary si dewalk or street, the entrances are marked by large planters, waterfalls, and stone signs, and the Plaza’s stated- 5 -

purpose is to act as an ecclesiastical park. Utah Gospel Mission v. Salt Lake City Corp. , 316 F. Supp. 2d 1201, 1207-08 (D. Utah. 2004). T he City’s deed reserved an easement for public access and passage, but prov ided that the LDS Church could prohibit expressive conduct on the property. The property was valued at $8.124 million without reduction for the value of t he easement, and the Church paid the entire amount with the easement. Id. at 1238 n.44. The Church prohibited soliciting, begging, demonstrations, pro tests, leafleting, and other activities perceived as disruptive. After the Plaz a was built, a group of plaintiffs sued, claiming that the City’s access and passage e asement constituted a public forum. We agreed, holding that the easement was a public forum upon which content-based restrictions on speech could not be e nforced. First Unitarian Church of Salt Lake City v. Salt Lake City Corp. , 308 F.3d 1114, 1132 (10th Cir. 2002). Following First Unitarian Church , the City sold the easement, valued at approximately $500,000, in return for 2.17 acres of land in a low income neighborhood and a $5 million recreation center to be built on that land. The settlement agreement and amended deed specifically stated: “No Right of Public
Access – It is the intent of the Parties to eliminate any right of public access or passage enforceable by the City or by members of th e public in relation to the Main Street Plaza Property.” Utah Gospel Mission , 316 F. Supp. 2d at 1231.- 6 -

However, the City retained a right of reentry that could be exercised if the Church failed to maintain the Plaza as a “landscaped space .” Additionally, the City retained certain utility easements allowing pipes a nd electrical conduits to pass under the Plaza. On August 7, 2003, another group of plaintiffs suedthe City and the LDS Church, claiming (1) that the Plaza remains a publi c forum despite the sale of the access and passage easement, and (2) that the sale of the easement to the Church violated the Establishment Clause. Plaintiffs file d a motion for preliminary injunction to prevent the Church from restricting f ree speech activities on the Plaza on November 7, 2003. The Church then moved t o dismiss the complaint. On May 3, 2004, the district court denied Plaintiff s’ motion for preliminary injunction and granted the Church’s motion to dismi ss, holding that (1) the Plaza is now entirely privately owned and “thus beyond th e reach of the First Amendment,” (2) the secular purposes supporting the easement were “both obvious and numerous,” and (3) the sale of the ease ment, as a matter of law, did not advance or endorse religion because the sale wa s in exchange for adequate consideration. Utah Gospel Mission , 316 F. Supp. 2d at 1224, 1238, 1239. Plaintiffs filed timely notice of appeal.

Discussion- 7 -

We review a dismissal under Fed. R. Civ. P. 12(b)(6 ) de novo. Summum v. Callaghan , 130 F.3d 906, 913 (10th Cir. 1997). Accordingly, we “must accept all the well-pleaded allegations of the complaint as tr ue and must construe them in the light most favorable to the plaintiff.” Id. (internal quotations and citations omitted). The court will uphold a Rule 12(b)(6) di smissal “only when it appears that the plaintiff can prove no set of facts in sup port of the claims that would entitle him to relief.” Id. (internal quotations and citations omitted). The district court relied upon materials outside th e complaint in resolving the motion to dismiss, including an amended deed an d settlement agreement, which were referenced, but not included in the comp laint. Generally, a district court must convert a motion to dismiss into a motio n for summary judgment when matters outside the pleadings are relied upon. Fed . R. Civ. P. 12(b); Miller v. Glanz , 948 F.2d 1562, 1565 (10th Cir. 1991). A motion t o dismiss considers the conduct alleged in the complaint, whereas a motion for summary judgment considers the evidence (or lack thereof) upon whichthe allegations are based. Bell v. Fur Breeders Agric. Coop. , 348 F.3d 1224, 1230 (10th Cir. 2003). We have recognized however, that a document central to the plaintiff’s claim and referred to in the complaint may be considered in r esolving a motion to dismiss, at least where the document’s authenticity is not i n dispute. County of Santa Fe v. Pub. Serv. Co. of N.M. , 311 F.3d 1031, 1045 (10th Cir. 2002); GFF Corp. v

.- 8 -

Associated Wholesale Grocers, Inc. , 130 F.3d 1381, 1384 (10th Cir. 1997). The district court also properly took judicial notice o f a 2003 ordinance. Zimomra v. Alamo Rent-A-Car, Inc. , 111 F.3d 1495, 1503 (10th Cir. 1997). The district court declined to convert the motion t o dismiss into one for summary judgment, so of course no notice issue is p resented. Utah Gospel Mission , 316 F. Supp. 2d at 1205 n.5, 1246 n.52. It decli ned a motion to strike other evidentiary material in support of the motion to dismiss after stating that it did not rely on such material. Id. at 1246. The court then stated that Plaintiffs could not have claimed surprise had it converted th e motion to one for summary judgment without notice. Id. at 1246 n.52. This was because (1) Plaintiffs wer e allowed discovery in connection with their request for a preliminary injunction, and (2) Plaintiffs argued in a supplemental authori ty letter that the City’s motivation to sell the easement was “uniquely factu al” and could not be dismissed under Rule 12(b)(6) or Rule 56. Id. The court then observed that consideration of extrinsic evidence “bolsters the court’s conclus ion that Plaintiffs’ claims must be dismissed because Plaintiffs have failed to demo nstrate that a material disputed fact existed about any genuine issue.” Id. We reject this dicta. It is true that constructive notice or a non-movant’s reliance upon evidentiary materials in response to a motion to dismiss may obviate the need for formal notice by the court of conversion. Alexander v.- 9 -

Oklahoma , 382 F.3d 1206, 1214 (10th Cir. 2004). But neithe r exception seems applicable here, and the non-movant should not have to guess about the court’s intention. Not having provided such notice, it is at best premature for the district court to express such an opinion. We treat the dis trict court’s disposition as a ruling on a motion to dismiss. On appeal, Plaintiffs contend that this case is abo ut motives, arguing that “the motives of both the City and the LDS Church ar e totally transparent.” Aplt. Br. at 36, 41. Plaintiffs claim that at the very l east, they are entitled to the benefit of the allegations in their complaint that the City ’s vacating the easement was “a pretext for content and viewpoint discrimination,” id. at 36, and “a sham or facade adopted to conceal an improper religious mot ive.” Id. at 43. They suggest that such motivation “is a uniquely factual determi nation that is inappropriate for disposition under [Rule] 12(b)(6).” Id. at 36. While this might be the case, the Plaintiffs’ position can permissibly be evaluated w ithin the context of the hundreds of factual allegations contained in their complaint, and the express purposes of the transaction contained in the settle ment agreement, amended deed, and ordinance. Having reviewed those items, and fo r reasons discussed below, we conclude that the district court was correct in concluding that the complaint failed to state a claim. A. Failure to State a Free Speech Claim- 10 -

“It is, of course, a commonplace that the constitut ional guarantee of free speech is a guarantee only against abridgment by go vernment, federal or state.” Hudgens v. NLRB , 424 U.S. 507, 513 (1976). Thus, to prove a violation of the First Amendment right to free speech, Plaintiffs mu st either demonstrate that the Church, as the sole owner of the Plaza, is a state actor, or that the Plaza is nevertheless a public forum in spite of its sale to a private owner. The Court first found that a private property owner can be a state actor for First Amendment purposes in Marsh v. Alabama , 326 U.S. 501 (1946). In that case, the Court concluded that the property interests of Gulf Shipb uilding Corporation, the private owner of a company town that did “not funct ion differently from any other town,” id. at 508, did not allow the company to regulate spee ch more strictly than a municipality. Id. at 508-09. Applying this theory, the Court found that a privat e entity performs a public function when it operates a park that is public in nature and attempts to enforce racial restrictions. Evans v. Newton , 382 U.S. 296, 302 (1966) (“[T]he public character of this park requires that it be treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who now has title under state law.”). Evans has since been limited to the unique facts involve d. Flagg Bros. Inc. v. Brooks , 436 U.S. 149, 159 n.8 (1978) (noting that Evans involved “extraordinary circumstances” and distingu ishing that case because there- 11 -

was “actual involvement of the city in the daily ma intenance and care of the park”). At one point, the Court expanded the publi c function doctrine to encompass the activities of a private shopping cent er. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, In c. , 391 U.S. 308 (1968). However, the Court later overruled this expansion. Hudgens , 424 U.S. at 507 (“[W]e make clear now, if it was not clear before, that the rationale of Logan Valleydid not survive the Court’s decision in [Lloyd Corp. v. Tanner , 407 U.S. 551 (1972)].”). Accordingly, the public function doctrine has essentially been limited to the facts of Marshand Evans , which differ greatly from the facts of the instan t case. While Marshinvolved a privately owned town with all the norma l attributes of a typical municipality, such as stores, churches, uti lities, sidewalks, and streets, the Plaza is an open space clearly delineated from the surrounding streets and sidewalks. Similarly, Evans involved a city’s attempt to enforce racially restrictive covenants governing a privately owned p ark that the city maintained. The Plaza at issue here is maintained solely by the LDS Church; it is not operated or maintained by the City. Moreover, following Mar shand Evans , Plaintiffs can point to no case in which a court has found that a private entity’s control is so pervasive that it is performing a public function. Marshand Evans are factually inapposite; the speech restrictions by the LDS Chur ch do not constitute state- 12 -

action under the public function doctrine. Alternatively, Plaintiffs argue that even if the Ch urch is not a state actor, the Plaza, by its nature, is still a public forum. Certainly, property does not become a public forum simply because a private owne r generally opens his property to the public. Hudgens , 424 U.S. at 519-21; Lloyd Corp. , 407 U.S. at 569. On appeal, Plaintiffs argue that notwithstand ing its private ownership, the Plaza is a public forum. First, Plaintiffs seem to argue that a public forummay never be sold to a private entity, or that if it is sold, it remains apublic forum. This argument is foreclosed by our precedent. The fact that the Pla za “used to be a public street does not render it a traditional public forum.” Hawkins v. City & County of
Denver , 170 F.3d 1281, 1287-88 (10th Cir. 1999) (determin ing that a former public street that was converted into an open-air, glass covered pedestrian walkway that led to a performing arts center is nota public forum). Moreover, the government “always retains authority to close apublic forum[] by selling the property.” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee , 505 U.S. 672, 699- 700 (1992) (Kennedy, J., concurring); see also First Unitarian Church , 308 F.3d at 1132 (stating that City may relinquish easement so property becomes entirely private). Plaintiffs’ argument to the contrary is without merit. Next, Plaintiffs claim that for a street or sidewal k to be changed from a- 13 -

presumptively public forum to private property, the physical characteristics must also change. See , e.g. , Lee , 505 U.S. at 700 (Kennedy, J., concurring) (explai ning that to change a property’s public forum status, th e state “must alter the objective physical character or uses of the property”); Venet ian Casino Resort L.L.C. v. Local Joint Exec. Bd. of Las Vegas , 257 F.3d 937, 944 (9th Cir. 2001) (finding no alteration because the sidewalk still performed the same role as it did previously). However, Plaintiffs’ reliance on Justice Kennedy’s concurrence in Lee and the Ninth Circuit’s opinion in Venetianis not persuasive in this case. The test for a public forum proposed by Justice Kennedy asks if “the objective, physical characteristics of the property at issue and the ac tual public access and uses that have been permitted by the government indicate thatexpressive activity would be appropriate and compatible with those uses, [then] the property is a public forum.” Lee , 505 U.S. at 698 (Kennedy, J., concurring). In th is case, because of the signs posted at all entrances to the Plaza and its differentiation from the surrounding sidewalks, the objective, physical char acteristics demonstrate that the Plaza is privately owned. Further, although the ea sement required the government to allow expressive activity, the Plaza is no longe r owned or controlled by the government. Id. at 698. Plaintiffs urge us to look at the history, function , and purpose of the Plaza and conclude that the Plaza is a public forum in ac cordance with the principles- 14 -

employed in First Unitarian Church . We did not go so far in First Unitarian Church . There, we concluded that the easement , not the surrounding Plaza property, was a public forum and our holding was so limited. First Unitarian Church , 308 F.3d at 1131. Any doubt about the limitation of our holding is belied by our extensive prior discussion concluding that an easement allowing the government rights to the property subjects it to fo rum analysis. Id. at 1121-24. Absent the easement, we have no reason to doubt that “[p]roviding for a religious park” is now the purpose of the entire property hel d in private ownership. Id. at 1128 n.10. The City simply does not own the Plaza, having sold it in the first instance for over $8 million. It relinquished its legally significant remaining ownership interest, namely the easement, for consid eration valued at $5.375 million. Third, Plaintiffs argue that the City’s retained ri ght of reentry, requiring that the Plaza be maintained as a landscaped space, is sufficient to render the Plaza a public forum. Clearly, “[e]ither governmen t ownership or regulation is sufficient for a First Amendment forum of some kindto exist.” Id. at 1122. However, unlike the case with an easement, our prec edent dictates that a similar future interest, the possibility of reverter, is no t a present estate. Woodville, Okla. v. United States , 152 F.2d 735, 738 (10th Cir. 1946) (“[A] possibil ity or right of reverter . . . does not constitute an actu al estate . . . All the estate rests in- 15 -

the first grantee, notwithstanding the qualificatio ns annexed to it.”) (internal quotations and citations omitted); Mount Olivet Cem etery Ass’n v. Salt Lake City , 164 F.3d 480, 485 (10th Cir. 1998) (possibility of reverter owned by the United States was “minimal and speculative” and insufficie nt to constitute property owned by the United States for purposes of preempti ng state authority). Moreover, because such future interests are not ent itled to compensation under the Fifth Amendment, Woodville, Okla. , 152 F.2d at 738; see also Restatement (First) of Property § 53, the right of reentry is n ot a constitutionally cognizable property interest. See First Unitarian Church , 308 F.3d at 1122-23. Thus, the City’s right of reentry is insufficient to render t he Plaza a public forum. Plaintiffs also argue that the right of reverter is a property interest substantial enough to support their claims, citing Hampton v. City of Jacksonville , 304 F.2d 320 (5th Cir. 1962), United States v. Miss issippi , 499 F.2d 425, 430-32 (5th Cir. 1974), and Eaton v. Grubbs , 329 F.2d 710 (4th Cir. 1964). In each of these cases, courts found state action where the go vernment owned a reversionary interest in a segregated, privately operated golf c ourse, school or hospital. We think that those cases are readily distinguishable. In Hamptonand Eaton , the governmental entity was inextricably intertwined wi th the ongoing operations of the private entity, and the property served the sam e primary function as before. In United States v. Mississippi , the local governmental entity leased an unused- 16 -

school facility to a civic association which in tur n leased it to a private segregated school. The court determined that the arrangement resulted in the establishment and continuation of a segregated school using state resources, in obvious contravention of a directive to the local governmen tal entity to desegregate. United States v. Mississippi , 499 F.2d at 432. As noted, the property in this case serves a verydifferent primary function than when under City ownership, and the right of re verter does not require that the Plaza be used only for a particular purpose, gr ant the public a right of access, give the City the right to control expressive activ ities on the Plaza, or prohibit the LDS Church from erecting fences or closing the Plaz a altogether. The right of reverter merely acts to preserve the property as a landscaped space, maintain the view corridor, and allow for public utility easemen ts. To the extent that these subsidiary functions are encouraged, the City is no t inextricably intertwined with the ongoing operations of the LDS Church or the Pla za. Finally, Plaintiffs argue that cases from our siste r circuits, which have found sidewalks to be public fora because they so c losely resembled ordinary public sidewalks, dictate that we find the Plaza to be a public forum. We disagree. In Venetian , the Ninth Circuit was faced with the issue of “wh ether a sidewalk constructed on private property to replace a public sidewalk, accommodating pedestrian traffic adjacent to Las Ve gas Boulevard, is a public- 17 -

forum subject to the protection of the First Amendm ent.” 257 F.3d at 939. In that case, the court noted that the function of the sidewalk in question was the same as those on either side of the property, the p urpose was the same as any other sidewalk, there was a recorded servitude on the property requiring the Venetian to dedicate it to public use, and the side walk was indistinguishable from adjoining sidewalks. Id. at 942-45. Our consideration of these factors militates a deci sion in favor of Defendants. First, the function of the Plaza, at l east when the Church chooses to leave it open to the public and pedestrians use it as a shortcut to other downtown destinations, is similar to that of any other sidew alk or designated pedestrian thoroughfare. Thus, although the Plaza might at ot her times have different functions, if left open to and used by the public, it “still performs the same role as a thoroughfare for pedestrian traffic.” Venetian , 257 F.3d at 944. However, the similarities between Venetianand the instant case begin and end there. The asserted purpose of the Plaza, unlike that of anormal sidewalk or other public forum, is to act as an ecclesiastical park. Next, unlike the sidewalk in Venetian , there is no recorded servitude requiring that the Church allow public access. Rather, the deed conveying the servitude, as referenced in Plaintiffs’ complaint and relied upon by the district court, sp ecifically states that the Church is in no way required to allow public access to the Plaza. Utah Gospel Mission ,- 18 -

316 F. Supp. 2d at 1216-17; see also Venetian , 257 F.3d at 948 (“While the mall owners in Lloydand Hudgens were free to barricade their walkways, or close their malls outright, without giving patrons any le gal ground to complain, the Venetian is not.”). Finally, the Plaza absent an e asement is not “seamlessly connected to public sidewalks.” Venetian , 257 F.3d at 943; see also United States
v. Grace , 461 U.S. 171, 180 (1983) (“There is no separation , no fence, and no indication whatever to persons stepping from the street to the curb and sidewalk[] . . . that they have entered some special type of e nclave.”). Instead, the Plaza is landscaped, the walking surface is different from t hat of the City sidewalks, and waterfalls, planters, and stone signs announce to e ntrants that the Plaza is the property of the LDS Church. Utah Gospel Mission , 316 F. Supp. 2d at 1207-08. Although the function of the Plaza is the same as a ny public thoroughfare, every other factor considered by the Venetiancourt requires a result in favor of Defendants. Plaintiffs also argue that United Church of Christ v. Gateway Economic Development Corp. , 383 F.3d 449 (6th Cir. 2004), is controlling. Inthat case, the Sixth Circuit considered whether the common areas and sidewalks surrounding Gateway Park in Cleveland are public fora in spite of the fact that the stadium is privately owned. The court noted that the sidewalkencircling the complex “looks and feels like a typical public sidewalk” and “blen ds into the urban grid.” Id. at- 19 -

452. Second, the court found that the sidewalk was a “public thoroughfare,” which “contributes to the City’s downtown transport ation grid and is open to the public for general pedestrian passage.” Id. On these facts, the court found that the sidewalks surrounding the stadium were public f ora. United Church of Christalso weighs in favor of Defendants. First, the Plaza does not look like a typical public sidewalk, since it is composed of a different material and is clearly marked as private property owned by the LDS Church. Second, although the Plaza contributes to the downtown transportation grid by facilitating pedestrian passage, the easeme nt deed and sale agreement specifically stated that the Plaza need not be held open to the general public and the LDS Church could restrict entry. Thus, both of the factors considered by the Sixth Circuit weigh against finding that the Plaza is a public forum. Because Plaintiffs have failed to show either that the Chur ch is a state actor or that the Plaza constitutes a public forum under the First Am endment, the district court properly dismissed Plaintiffs’ claims. B. Failure to State an Establishment Clause Claim The traditional standard used for analysis of Estab lishment Clause claims was developed in Lemon v. Kurtzman , 403 U.S. 602, 612-13 (1971). Under
Lemon , “the [given municipal action] must have a secularlegislative purpose; second, [the action’s] principal or primary effect must be one that neither- 20 -

advances nor inhibits religion; [and,] finally, the [action] must not foster an excessive government entanglement with religion.” Id. (internal quotation marks and citation omitted). No consideration of the sec ond or third criterion is necessary if a statute does not have a clearly secu lar purpose. Wallace v. Jaffree , 472 U.S. 38, 56 (1985). Thus, to succeed, Plaintif fs must allege facts which suggest a violation of any part of the analysis. B auchman v. W. High Sch. , 132 F.3d 542, 552-53 (10th Cir. 1997). Although this analysis has come under vigorous attack by Justices and commentators alike, see id. at 551 (listing cases and articles), “Lemon‘has not been overruled’ and thus remains the starting point for our Establishment Clause analysis.” Summum , 297 F.3d at 1009 (citation omitted); see also Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dis t. , 508 U.S. 384, 395 n.7 (1993) (reiterating that Lemonhas not been overruled). 1. Secular Purpose The First Amendment requires that a governmental ac tion be invalidated “if it is entirely motivated by a purpose to advance re ligion.” Wallace , 472 U.S. at 56. In making this determination, it is appropriat e to ask “whether the government’s actual purpose is to endorse or disapp rove of religion.” Lynch v. Donnelly , 465 U.S. 668, 690 (1984). “The Court has invalid ated legislation or governmental action on the ground that a secular pu rpose was lacking, but only when it has concluded there was no question that th e statute or activity was- 21 -

motivated wholly by religious considerations.” Id. at 680. When the government professes a secular purpose foran arguably religious policy, the government’s characterization is entitl ed to some deference. Santa Fe Indep. Sch. Dist. v. Doe , 530 U.S. 290, 308 (2000). It remains our duty, though, to “‘distinguis[h] a sham secular purpose from a si ncere one.’” Id. (quoting Wallace , 472 U.S. at 75 (O’Connor, J., concurring)). Howe ver, we are “reluctan[t] to attribute unconstitutional motives to the states, particularly when a plausible secular purpose for the state’s program m ay be discerned from the face of the statute.” Mueller v. Allen , 463 U.S. 388, 394-95 (1983); see also Bowen v. Kendrick , 487 U.S. 589, 602 (1998) (legitimate secular purp ose behind a program created to eliminate or reduce social and economic problems caused by teenage pregnancy and parenthood); Lynch , 465 U.S. at 680-81 (legitimate secular purpose behind the annual display of a nativity sce ne in place to celebrate the secular aspects of Christmas); McGowan v. Maryland , 366 U.S. 420, 444-45 (1961) (legitimate secular purpose behind Sunday Bl ue Laws in place to improve public health, morals, and safety). Secular purposes exist for the sale of the easement . First, the City was well compensated, receiving $5 million in exchange for a n easement valued at $500,000. Second, the City was able to extricate i tself from perceived entanglement with the Church and thereby reduce pub lic outcry by eliminating- 22 -

joint ownership of the Plaza. Similarly, the City could reasonably conclude that if it were left with the responsibility of regulating protected expressive activities on the Plaza, this responsibility would likely result in litigation. Utah Gospel Mission , 316 F. Supp. 2d at 1215-16 (reiterating City’s re asons for selling the easement). Finally, in First Unitarian Church , this court specifically stated that “[i]f it wants an easement, the City must permit sp eech on the easement. Otherwise, it must relinquish the easement so the p arcel becomes entirely private.” 308 F.3d at 1132. The City and Church c ould conclude that by choosing one of the options presented, each could avoid further litigation involving potential constitutional violations. Thus, Defendants have advanced numerous plausible l egitimate secular purposes for the sale, which are entitled to some d egree of deference. Bauchman , 132 F.3d at 554. Moreover, the fact that some rel igious purpose may be advanced by the sale does not constitute an establi shment of religion given the secular purposes advanced here. In spite of the pu rported religious purposes behind the transaction, we agree with the district court that there are “obvious and numerous” secular purposes, including resolving the legal dispute over the easement, eliminating the City’s responsibility to regulate activities on the Plaza, enabling the construction of a new community center , and promoting tourism and economic development. Utah Gospel Mission , 316 F. Supp. 2d at 1238.- 23 -

Accordingly, the sale of the easement does not viol ate the purpose prong of the
Lemontest. 2. Primary Effect The second part of the Lemontest asks whether the principal or primary effect of the given governmental action either endo rses or inhibits religion.
Lemon , 403 U.S. at 612 (citation omitted). “Endorsement ” in this context is akin to “promotion.” County of Allegheny v. ACLU , 492 U.S. 573, 593 (1989). Symbolic benefit to religion is enough; it “need no t be material and tangible advancement.” Friedman v. Bd. of County Comm’rs of Bernalillo County , 781 F.2d 777, 781 (10th Cir. 1985). Of particular importance within the effect prong is “whether the challenged policy ensures government ‘neutrality towards relig ion.’” Summum , 297 F.3d at 1010 (quoting Good News Club v. Milford Cent. Sch. , 533 U.S. 98, 114 (2001)). In essence, the court “must consider not only wheth er the government is actually acting neutrally but also whether a reasonable obse rver, reasonably informed as to the relevant circumstances, would perceive the gove rnment to be acting neutrally.” Id. ; see also Bd. of Educ. v. Grumet , 512 U.S. 687, 696 (1994). Thus, a governmental action is not “unconstitutional simp ly because it allows churches to advance religion, which is their very purpose. For a law to have forbidden ‘effects’ under Lemon , it must be fair to say that the government itself has- 24 -

advanced religion through its own activities and in fluence.” Corp. of the Presiding Bishop of the Church of Jesus Christ of L atter-Day Saints v. Amos , 483 U.S. 327, 337 (1987) (emphasis in original). Accordingly, the Court held that an “equal access” policy would not violate the Establishment Clause. See Lemon , 403 U.S. at 612-13; see also Bd. of Educ. v. Allen , 392 U.S. 236 (1968) (upholding expenditure of pub lic money for textbooks supplied to church-sponsored schools); Ev erson v. Bd. of Educ. , 330 U.S. 1 (1947) (upholding expenditure of public fund s for transportation of students to church-sponsored schools); Tilton v. Ri chardson , 403 U.S. 672 (1971) (upholding federal grants for college buildings to church-sponsored institutions of higher learning); Roemer v. Bd. of Pub. Works , 426 U.S. 736 (1976) (upholding noncategorical grants to church-sponsored colleges and universities). At the opposite end of the spectrum, the Court has found that a governmental subsidy directed at religious institut ions and not required by the Free Exercise Clause conveys a message of endorseme nt. Tex. Monthly, Inc. v. Bullock , 489 U.S. 1 (1989); see also Santa Fe Indep. Sch. Dist. , 530 U.S. at 305- 06 (finding that although the school characterized the prayer program as “hands off,” “the realities of the situation plainly revea l that its policy involves both perceived and actual endorsement of religion”); For emaster v. City of St. George , 882 F.2d 1485, 1489 (10th Cir. 1989) (holding that an electric subsidy given by- 25 -

the City impermissibly advanced the LDS Church). Looked at objectively, the instant case is one of n eutrality and equal access, in which the City does nothing to advance religion, but merely enables the LDS Church to advance itself. Although Plaintiffs cont end that this is a case of implicit endorsement or promotion of the Church’s m essage, when viewed objectively as a transfer of property from the gove rnment to a private entity, which happens to be a church, the sale of the easem ent cannot be held to violate the effect prong of Lemon . In essence, because neutrality toward religion b y the state is the key, the City must transact indiscrimi nately with both religious and non-religious buyers. 3. Excessive Entanglement
Lemon ’s final prong provides that a challenged governmental action “must not foster ‘an excessive government entanglement wi th religion.’” Lemon , 403 U.S. at 613 (citation omitted). Total separation b etween church and state is not possible in an absolute sense. “Fire inspections, building and zoning regulations, and state requirements under compulsory school-atte ndance laws are examples of necessary and permissible contacts.” Id. at 614. “In order to determine whether the government entanglement with religion is excess ive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relation ship between the government and- 26 -

the religious authority.” Id. at 615. First, while First Unitarian Churchheld that the easement is a public forum, by no means did we state that the City could never sell the easement. Instead, we stated that because the easement is a public forum, the city must either permit speech on it, or “relinquish the easement so the pa rcel becomes entirely private.” First Unitarian Church , 308 F.3d at 1132. Second, one of the secular purposes for the transaction is that the City wanted to rid itse lf of the responsibility of regulating activities on the Plaza and the attendan t public outcry. Utah Gospel Mission , 316 F. Supp. 2d at 1215. Thus, this transaction shows an attempt by the City to extricate itself from the task of regulatin g the Plaza. Therefore, because the Church and City are ending this part of their r elationship, there is no excessive entanglement of church and state. C. Sale of Easement Not a Sham Transaction Within their Free Speech and Establishment Clause arguments, Plaintiffs claim that the reasons stated by the City for selli ng the easement are a pretext for viewpoint discrimination by the Church. Thus, the compensation exchanged for the easement was a facade, and the sale of the ease ment was a sham transaction entered into by the City only to allow the Church t o more effectively convey its message. In so arguing, Plaintiffs claim that the motives of the City and the LDS Church are transparent, and the determination of mo tive is a factual issue not- 27 -

appropriate for disposition under Federal Rule of C ivil Procedure 12(b)(6). The numerous cases cited by Plaintiffs, in which th e government had some sort of continuing interest in the property, are di stinguishable from the situation at bar, where the government has relinquished the prop erty. Plaintiffs argue that because they have alleged that the City was motivat ed by a desire to protect the Church’s interest in controlling the property, the existence of other valid considerations leading to the government’s decisionis irrelevant. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. , 473 U.S. 788 (1985). However, Cornelius , as well as the other cases cited by Plaintiffs fo r this proposition, see Aplt. Br. at 34-35, all concern situations in whichthe government continues to possess a significant property interest. As for re ligious discrimination, Plaintiffs rely upon statements that implicate policy choices in a democracy. We, like the district court, decline to enter that morass. The fact that the mayor changed his mind by first vocally opposing the sale of the ease ment and later supporting it or that this issue was controversial simply does not s upport the claim that the transaction was a sham. This case contains no well-pleaded factual assertio ns that suggest a sham. Having spent over $8 million to acquire the Plaza, it is not surprising that the Church, like any other property owner, would take s teps to preserve its quiet enjoyment. Nothing indicates that the exchange all owed the City to exercise- 28 -

significant control over the property, that there w as a grossly disproportionate exchange of value from the City’s perspective, thatno consideration was received, or that the City continued to maintain th e property. Although Plaintiffs argue that the City and the Church made a secret or al agreement that the Church would continue to allow public access to the Plaza, that is completely belied by the settlement agreement, which contains an integration clause, and the special warranty deed, which recites the parties’ unequivoc al intent to terminate the right of public access. Aplt. App. 397, 404. It is simp ly not enough to allege in conclusory fashion that the transaction was a produ ct of undue influence, demonstrating a desire to circumvent this court’s d ecision in First Unitarian Church , a most curious allegation since the panel provide d the roadmap for private ownership. There are clearly reasonable g rounds for the sale of the easement since, among other benefits, the City rece ived over $5 million in compensation for an easement appraised at $500,000. Though Plaintiffs undoubtedly were opposed to the transaction, the de mocratic process reached a different conclusion. Plaintiffs’ unsupported alle gations of pretext are insufficient for us to ignore the numerous legitimate reasons for the transaction. D. Denial of Preliminary Injunction Not Abuse of D iscretion We review a district court’s denial of a preliminary injunction for an abuse of discretion. ACLU v. Johnson , 194 F.3d 1149, 1155 (10th Cir. 1999). An- 29 -

abuse of discretion occurs “only when the trial cou rt bases its decision on an erroneous conclusion of law or where there is no rational basis in the evidence for the ruling.” Hawkins , 170 F.3d at 1292. To obtain a preliminary injunction, the moving party must establish: “(1) substantial likelihood that the movant will eventua lly prevail on the merits; (2) a showing that the movant will suffer irreparable inj ury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest.” SCFC ILC, Inc. v. Visa USA, Inc. , 936 F.2d 1096, 1098 (10th Cir. 1991) (citation an d internal quotations omitted). Having determined th at the district court properly dismissed Plaintiffs’ claim for failing to state a claim upon which relief can be granted, see Parts A and B supra , we agree with the district court that Plaintiffs have failed to demonstrate that they are likely to succeed on the merits. For that reason, Plaintiffs have failed to meet the first pa rt of the test for preliminary injunction, and the district court did not abuse it s discretion in denying their prayer for injunctive relief.
AFFIRMED.