Full opinion text
MEMORANDUM DECISION AND ORDER KIMBALL, District Judge. This matter is before the court on (1) Plaintiffs Utah Gospel Mission, First Unitarian Church of Salt Lake City, Shunda-hai Network, Utah National Organization for Women, and Lee J. Siegel’s (collectively referred to as “Plaintiffs”) Motion for Preliminary Injunction, (2) Defendants Salt Lake City Corporation (the “City”) and Ross C. (“Rocky”) Anderson’s (the “Mayor”) (collectively referred to as the “City Defendants”) Motion to Dismiss, (3) Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints’ (the “LDS Church” or the “Church”) Motion to Dismiss, (4) Plaintiffs’ Motion to Strike Materials from Defendants’ Motion to Dismiss, (5) Plaintiffs’ Motion to Strike Declarations of Thomas G. Alexander and Ross C. Anderson, or in the Alternative, for Leave of Court to Depose Declarants and Supplement the Record, and (6) the LDS Church’s Motion to Strike Barber Declaration and Portions of Eyer Declaration. A hearing on the motions was held on January 26, 2004. At the hearing, Plaintiffs were represented by Mark J. Lopez, the City was represented by Steven W. Allred, and the LDS Church was represented by Alan L. Sullivan. Before the hearing, the court carefully considered the memoranda and other materials submitted by the parties. Since taking the motions under advisement, the court has further considered the law and facts relating to the motions. The court has also considered the supplemental materials submitted to the court following the January 26, 2004 hearing, including: (1) two letters containing supplemental authority and argument from Plaintiffs, both of which were dated February 12, 2004; (2) the LDS Church’s February 17, 2004 response to Plaintiffs’ supplemental letters; (3) the City’s February 19, 2004 response to Plaintiffs’ supplemental letters; (4) Plaintiffs’ February 19, 2004 third supplemental letter; and (5) the LDS Church’s February 23, 2004 response to Plaintiffs’ third supplemental letter. Now being fully advised, the court renders the following Memorandum Decision and Order. I. BACKGROUND The instant litigation is the second round of a long-standing and divisive dispute pertaining to the City’s sale to the LDS Church of a block of Main Street (the “Main Street Plaza”) in downtown Salt Lake City, Utah. The first round of this dispute involved the City’s sale of Main Street Plaza and the City’s reservation of an easement (the “Pedestrian Easement” or “Easement”) through the Plaza while at the same time allowing the LDS Church to control behavior and limit First Amendment activity on the Plaza. The Tenth Circuit Court of Appeals ultimately determined that the Easement itself was a public forum for First Amendment purposes and that the City and Church could not prohibit protected speech on the Pedestrian Easement. See First Unitarian Church v. Salt Lake City Corp., 308 F.3d 1114 (10th Cir.2002) (“Main Street I”). The instant action — round two of the dispute — involves the fallout from the Tenth Circuit’s decision in Main Street I and specifically the constitutionality of the City’s sale to the LDS Church of the Pedestrian Easement. Through the sale of the Easement, the LDS Church secured the right to prohibit First Amendment activity on the Main Street Plaza, and, in exchange, the City obtained 2.125 acres of LDS Church-owned property in the Glendale neighborhood of the City, payment of half the attorneys’ fees awarded against the City in the previous litigation, and $5 million in cash and land from the Alliance for Unity. In total, the City obtained, among other things, over $5,375 in land and cash in exchange for the Pedestrian Easement, which had been valued at $500,000. Plaintiffs believe that the Mayor’s decision to sell the Pedestrian Easement was brought about by the undue influence of the LDS Church. In particular, they assert that the pressure brought to bear by the Church and its threat of community divisiveness was the major consideration in the Mayor’s decision to capitulate to the Church’s demands — even if it meant sacrificing the public interest in maintaining the Easement. The City and the Church, on the other hand, argue that the Mayor proposed a compromise that, among other things, would bring many secular benefits to the City, including obtaining land and cash valued at over $5,375 million, putting to rest the legal battles between the City and the Church, and helping to heal the wounds of a City divided along religious lines. The question in this case is whether the sale of the Pedestrian Easement, however characterized by the parties, (1) violated Plaintiffs’ rights to freedom of expression and assembly under the First and Fourteenth Amendments to the United States Constitution, and (2) constituted an improper establishment of religion under the First and Fourteenth Amendments to the United States Constitution and Article I, Section 4 of the Utah Constitution. The events leading up to the present litigation are well known and largely undisputed. Many of the underlying facts are reported in the Tenth Circuit Court of Appeals’ decision in Main Street I, 308 F.3d at 1117-20. In addition, the court has relied on Salt Lake City Ordinance No. 31 of 2003, which includes, as Exhibits A and B respectively, the Settlement Agreement and Amended Special Warranty Deed, which are discussed extensively below. Many of the facts set forth below are not essential to the court’s legal analysis, but are set forth to provide historical context to this contentious controversy. A. The LDS Church’s 1999 Acquisition op the Main Street Plaza This case involves a two-acre parcel of land (the “Property”) located between North Temple Street and South Temple Street in downtown Salt Lake City. The LDS Church owns all the property on the two city blocks on the east and west sides of this portion of the former Main Street. On these blocks, the Church maintains a number of important historical, administrative, and worship facilities. The west block is called “Temple Square” and contains the Tabernacle and the Salt Lake Temple; the east block houses the Church administration buildings. Before the City closed and sold it to the LDS Church, the Property was a section of Main Street, consisting of a typical public street and adjoining public sidewalks. In 1995, the City sold the LDS Church the subsurface rights to this portion of Main Street, which the Church eventually developed into an underground parking garage. The sale agreement for that transaction also gave the LDS Church a right of first refusal on the surface property, if the City ever decided to sell it. In 1998, the City explored the possibility of closing the surface portion of Main Street and selling it to the LDS Church. On December 1, 1998, the City and LDS Church officials held a joint news conference to announce a proposal to develop an open-space pedestrian plaza on Main Street between North and South Temple. The LDS Church indicated that it was interested in such a purchase in order to construct a pedestrian plaza that would unify its international headquarters campus, which the Property (as a street) then bisected. On April 13, 1999, after hearings before the Planning Commission and the Salt Lake City Council, the City Council passed Ordinance No. 28 of 1999, closing the Property to public use. On April 27, 1999, the LDS Church purchased the Property for $8,124 million, which represented the appraised fair market value of the Property in fee simple absolute, without any significant encumbrances. Main Street I, 146 F.Supp.2d 1155, 1159-61 (D.Utah 2001) rev’d on other grounds by Main Street I, 308 F.3d at 1133. Nevertheless, in the April 27, 1999 Special Warranty Deed (the “Special Warranty Deed”) conveying the Property, the City reserved several easements. Among these was the Pedestrian Easement. Despite the reservation of the Easement, the $8,124 million purchase price was not altered. Unlike a typical public sidewalk easement, the Pedestrian Easement had no dimensions (no metes and bounds), no specific location, and no physical existence. Rather, it was purely a legal right to access and pass across the Property. Although the Easement guaranteed a public right of way through the property, it otherwise granted the LDS Church unfettered discretion to control all other conduct on the Plaza — including First Amendment activity. The Pedestrian Easement was specifically defined to ensure that the Property and eventual Plaza would not be dedicated to public ownership or constitute a First Amendment forum of any kind. Among other limitations, the Special Warranty Deed stated that the “Property is and shall at all times remain the private property of [the Church]” and that nothing in the Easement “shall be deemed to create or constitute a public forum, limited or otherwise.” The Special Warranty Deed set forth an illustrative list of prohibited activities, fil-eluding “loitering, assembling, partying, demonstrating, picketing, distributing literature, soliciting, begging, littering.” The terms of the Pedestrian Easement later became the center of a heated public controversy, with some accusing the LDS Church and the City administration of misleading the Salt Lake City Council as to the limited scope of the Easement. In response, on May 16, 2000, the Salt Lake City Council passed Ordinance No. 29 of 2000, which reaffirmed the sale of the Property and the Council’s full understanding of all its terms. After purchasing the Property, the LDS Church, at its own expense, removed the street and sidewalks and replaced them with the improvements that now constitute the Plaza. As provided in the Easement, the LDS Church allowed public access and passage over the Plaza. The LDS Church did not permit soliciting, begging, demonstrations, protests, leafleting, or other disruptive activities on the Plaza. B. PHYSICAL Description of the Main Street Plaza Main Street runs north-south through downtown Salt Lake City. The block sold to the LDS Church is bounded on the north by North Temple Street and on the south by South Temple Street. Directly to the north along Main Street lies a residential neighborhood rising along a hill on the north end of town. The neighborhood is comprised of high-rise and low-rise apartment buildings and single family homes. The Daughters of the Utah Pioneers Museum is at the crest of the hill, with the State Capitol building located one block east, on State Street. To the south is the City’s central business and commercial district, which includes two large shopping malls, as well as office and residential high-rises. The Plaza is surrounded on both sides by other LDS Church-owned property. The east side of the Plaza borders Church-owned property containing, among other things, the Joseph Smith Memorial Building, the Relief Society Building, and the Church Administration Budding. See Main Street I, 146 F.Supp.2d at 1168. There is no clear fine demarcating the two technically distinct properties. See id. The west side of the Plaza borders the wall of Temple Square. See id. Moving farther north, along the west side of the Plaza, the solid wall of Temple Square ends, exposing the east face of the Temple to the Plaza. See id. Prior to the sale of the Plaza to the LDS Church, much of the inner courtyard of the Temple had been blocked from full public view by a solid wall about twelve feet high. However, to integrate the Temple grounds with the Plaza, the LDS Church removed a large section of the wall, exposing the Temple’s inner courtyard to the Plaza. See id. In building the Plaza, the LDS Church altered the physical character of the Property. The common City street and sidewalks that once existed on the Property were removed and replaced by a religiously oriented pedestrian plaza — a landscaped “ecclesiastical park” — that is closed to vehicular traffic and that “fits seamlessly into the Church’s downtown campus.” Main Street I, 308 F.3d at 1119. As one enters the Plaza from the north or the south, the walking surface changes from the ordinary concrete of the City sidewalk to distinct reddish-grey granite pavers. Main Street I, 146 F.Supp.2d at 1167. “The Church Plaza’s entrances are marked by large planters placed on large stone structures containing waterfalls.” Id. A person cannot enter the Plaza from the public streets without passing within a few feet of a large stone sign, announcing that the Plaza is the property of the LDS Church. As found in Main Street I, “all of the surroundings alert the pedestrian that he or she has entered an enclave that is distinct from the public area.” Id. The centerpiece of the Plaza is an oval reflecting pool that creates a mirror-like image of the Temple and a dramatic visual effect: the Temple appears projected outward onto the center of the Plaza. See id. at 1168. The Plaza also contains the entrance to the Temple itself, which was formerly located on North Temple Street. See id. at 1168. The Plaza and the adjoining Temple Square and Church Administration properties now share numerous common physical features that create thematic unity among these religious sites. Id. at 1167-68. Plaintiffs allege that the Plaza provides a unique forum for the distribution of literature and social intercourse because people are more likely to gather and are more approachable than they might be when they pass by on the street. In addition, they claim, the Plaza is a unique site because it anchors the world headquarters of the LDS Church, which is a “major political player” in Utah. They further allege that engaging in First Amendment activity on the Plaza is a very direct way of influencing public policy by bringing pressure on the Church. They contend that it is similar to protesting in front of City Hall or the State Capitol, where they can generate publicity and achieve results. C. The Main Street I Litigation In June 2000, the First Unitarian Church of Salt Lake City and others, with the American Civil Liberties Union (“ACLU”) as counsel, sued the City in the United States District Court for the District of Utah, alleging both Free Speech and Establishment Clause claims. Generally, Plaintiffs objected to the fact that the Pedestrian Easement had been written to permit the LDS Church to control behavior and limit First Amendment activity on the Plaza. The LDS Church intervened as a party defendant to protect its property rights. Main Street I, 146 F.Supp.2d at 1167-68. On May 4, 2001, the District Court, the Honorable Ted Stewart presiding, entered summary judgment for the City and the LDS Church, holding that the Easement did not create a public forum for expressive activities or otherwise violate the First Amendment to the United States Constitution. On October 9, 2002, the United States Court of Appeals for the Tenth Circuit reversed the District Court’s decision. Main Street /, 308 F.3d at 1133. Disagreeing with the District Court, the Tenth Circuit held that the Easement itself was a public forum for First Amendment purposes. Id. at 1122. “Easements are ... constitutionally cognizable property interests” and therefore constitute a “significant enough property interest” to be “subject to forum analysis.” Id. at 1122-23. Accordingly, the court held that the City and the Church could not prohibit protected speech on the Easement. See id. at 1133. The Tenth Circuit offered the City the choice of either permitting “speech on the easement” or relinquishing “the easement so the parcel becomes entirely private,” which would eliminate the public forum and make the Plaza fully subject to LDS Church control. Id. at 1132. On remand to the United States District Court, District of Utah, the Honorable Ted Stewart issued an Order declaring that the Plaza is a public forum and enjoining the City from further interference with Plaintiffs’ First Amendment rights — subject to reasonable time, place, and manner regulations. D. The Ensuing Dispute over the Pedestrian Easement and the Mayor’s Proposed Solution Following the Tenth Circuit’s decision, a heated dispute arose between the City and the LDS Church over the continuing validity of the Easement established in the Special Warranty Deed. On the one hand, the LDS Church undertook a widely publicized public relations campaign to protect its interest in and reassert control over First Amendment activity on the Plaza. It took the position that the severability clause in Paragraph 6.2 of the Special Warranty Deed could not lawfully be interpreted to give either party more than it bargained for in the original agreement, and that the severability clause could not operate to give the City or the public an unrestricted easement because the parties specifically intended otherwise. In other words, the Church claimed that the Pedestrian Easement was void, and in any event should be vacated so the Church could constitutionally regulate the use of the Plaza property in accordance with the original intent of the parties. On the other hand, representatives of the City took the position that, as a result of the severability clause in Paragraph 6.2 of the Special Warranty Deed, the Pedestrian Easement remained in effect without the unconstitutional limitations on First Amendment activities set forth in the Special Warranty Deed. Mayor Anderson, the person responsible for implementing the decision in Main Street I and enforcing the terms of the original Special Warranty Deed, initiated a widely publicized campaign to protect the public’s interest in the Plaza and to deflect criticism from the LDS Church and others regarding the Tenth Circuit’s decision. During the ensuing months, Mayor Anderson and the LDS Church engaged in a vitriolic and widely reported dispute that, according to the Mayor, threatened to tear the City apart along religious lines. Plaintiffs allege numerous examples of the Mayor’s statements indicating his unwillingness to relinquish the Easement, stating that “it would be a betrayal” of the public’s interest to relinquish the Easement. For example, Plaintiffs allege that the Mayor was quoted as saying, “If [a candidate for mayor] promised to return [the Easement to the Church,] they would get 5% of the vote. Even LDS Church members would see through that — No. 1 as pandering, and No. 2 as being completely unethical.” Plaintiffs claim that this particular statement is representative of the Mayor’s many other statements and acts that place his later actions in context and raise serious questions about how and why the Church was given control over the Plaza. On October 22, 2002, Mayor Anderson released an eight-page statement rejecting the LDS Church’s proposals to abandon the Easement. In an announcement accompanying the release of his statements, the Mayor stated that the City would instead draft restrictions on conduct and speech for the Easement, “but ones that do not protect the Church from competition or expression it finds offensive.” In his eight-page written statement, the Mayor explained that he was “faced with the decision as to whether (1) Salt Lake City should simply transfer the easement to the [LDS Church] so the contemplated restrictions can be given effect, (2) Salt Lake City and the [LDS Church] should attempt to restructure the transaction in a manner that would give effect to the essential elements of the agreement reached between them, including assured public access and the restrictions on expressive activities, or (3) Salt Lake City should simply act according to the terms of the Special Warranty Deed, and, according to the opinion of the Tenth Circuit, formulate reasonable, content — neutral restrictions as to time, place, and manner that will conform to the requirements of the Constitution.” The Mayor concluded that, “[b]ased on the fundamental ethical principle that parties to an agreement should, to the extent possible, give effect to the promises each party made to the other, and based on the commitments of the City Council and the [former Mayor’s Administration] to the community as a whole, I am compelled to retain the easement on behalf of Salt Lake City, and proceed according to the terms of the Special Warranty Deed (except those that have been held by the court of appeals to be unconstitutional), and work with the Salt lake City Council to formulate constitutionally permissible time, place, and manner restrictions regarding conduct and other expressive activities on the Main Street Plaza.” Mayor Anderson stated that “to simply convey the easement to the [LDS Church] would ... violate that principle” and “would be a betrayal of the interests of Salt Lake City and of the public.” In its public relations campaign, the LDS Church distributed information packets to leaders of other faiths, business leaders, community council members, and many others in Salt Lake and Davis Counties. One of the brochures is titled Realizing a Vision — the New Church Plaza. The materials distributed by the Church included a letter from LDS Church President Hinckley describing how the LDS Church had dedicated the Plaza as a place to contemplate God and not as a place for “confrontational and noisy demonstrations.” President Hinckley explained that “the Prayer of Dedication included a plea that the Plaza be seen as a place of peace — an oasis in the midst of this bustling city — an island of quiet beauty where the weary may sit and contemplate the things of God and the beauties of nature.” The President’s letter to the public was subsequently printed in Salt Lake City’s two major daily newspapers. The City Council took steps to determine whether it had the authority to rewrite the terms of the original deed and relinquish the Pedestrian Easement. It authorized funds and eventually hired its own attorney for this purpose. Then-Council Chair Buhler and Councilman Jer-gensen issued public statements critical of the Mayor’s decision and supportive of the LDS Church’s opinion. The City Council’s actions sparked a widely publicized dispute between the Mayor and the individual Council members, including charges by some members of the City Council regarding the Mayor’s religious bias, and the Mayor’s countercharges of religious bias against the all-LDS City Council. According to Plaintiffs, the Mayor’s countercharg-es carried special weight in Salt Lake City because of the perception that the LDS Church controls the process of government. In widely published reports, Mayor Anderson often repeated his allegations of bias and defended his position as the more “objective voice in the dispute because the seven-member all-LDS City Council has vast conflicts of interests.” In a subsequent address before the City Council, the Mayor chastised the Council for taking the “extraordinary measures” to aid the Church. The Mayor stated that it was “very clear to this community” that the Council would not have taken such steps to deprive the community of the right of access to the Plaza if it was owned by someone other than the LDS Church. He also objected to the LDS Church public relations campaign, which he described as bringing unfair “pressure to bear” on the all-LDS Council. In widely published reports, including an article in The New York Times, the Mayor rebuked the LDS Church for the rancor and mistrust the Plaza controversy was creating along religious lines. Mayor Anderson was quoted as stating that “[t]he impact on the City has been horrendous,” and he blamed the LDS Church for the controversy: “My job is to do the right thing. To ask me to convey that easement from the City to the LDS Church would be a huge betrayal to the people in the community.” According to Plaintiffs, on November 26, 2002, the Mayor released an open letter, published by the Deseret News, which they claim made the clearest case for not surrendering the Pedestrian Easement: That easement was crucial to the city at the time of the initial deal. The Court of Appeals noted as follows: “While the City wanted to close the street to automobile traffic, it simultaneously wanted to preserve and indeed encourage pedestrian traffic. The easement through the plaza was specifically retained in order to preserve and enhance the pedestrian grid in the downtown.... [T]he easement was a necessary means of accomplishing these public purposes.... [T]he pedestrian easement was central to these goals.... [T]he City has contended throughout this litigation that the City would not have agreed to the sale ‘but for’ the easement.” Now that the Court of Appeals has ruled that the restrictions are unconstitutional, many people seem eager — even demanding (some of them very rudely) — that I violate the terms of the written agreement and betray the promises that were made to this entire community about the “crucial” public pedestrian easement. They call upon me to convey the easement to the Church of Jesus Christ, contrary to the written agreement and the public promises. Some who have made those demands have done so with righteous indignation that I would abide by the written agreement that was negotiated at length and drafted with the help of several lawyers representing The Church of Jesus Christ and the City. Ironically, I am being criticized by officials of The Church of Jesus Christ and [former Mayor] Deedee Cor-radini for refusing to significantly alter a contract negotiated, drafted, and signed by them.... If we are going to live up to our word — if we are going to abide by our promises — if we are going to comply with our written commitments — then we must let the written agreement signed on behalf of The Church of Jesus Christ and the [C]ity control the outcome of the Main Street Plaza situation. The parties agreed what would occur if a court deemed the restrictions to be unconstitutional. To change that written agreement, and to betray the promises to our community about the “crucial” pedestrian easement, would be wrong. If the City Council were to find a way to break those promises and destroy the public’s legal right of access, those who oppose the conveyance of the easement would be well entitled to ask if agreements — if promises — mean anything anymore. And they would be entitled to ask just why some members of the City Council went to such great lengths to undermine the public interest when the religious organization to which they belong is the party insisting that the written agreement be significantly altered. For a principled outcome, we must apply the controlling ethical principles consistently, regardless of who the parties to the transaction are .... On December 6, 2002, the Mayor released his proposal for regulating speech on the Plaza. The plan adopted by the Mayor narrowly defined the Pedestrian Easement and contained detailed regulations that were more extensive than those governing other public streets and sidewalks. The proposal limited the City’s existing legal claim to a narrow strip on the East side of the Plaza (farthest from the LDS Church’s Temple) and confined demonstrations to two designated areas at the North and South ends of that narrow strip. Leafleting would be permitted along the narrow strip under the Mayor’s proposal. The next day, according to Plaintiffs, attorneys for the LDS Church delivered a letter to the Mayor and members of the City Council rejecting the Mayor’s plan and reiterating the Church’s position that the City should surrender the Easement. “This community needs your help,” wrote Presiding Bishop H. David Burton, “[w]e respectfully submit that there is a way to resolve this perplexing problem: The easement must be extinguished.” Plaintiffs contend that, despite the LDS Church’s ongoing campaign to pressure the Mayor into abandoning his proposal, Mayor Anderson remained adamant in his commitment to preserve the Easement on behalf of the public. Sometime between December 6 and December 16, 2002, the Mayor formulated a compromise. Plaintiffs characterize this change of heart as an “eleventh hour decision to change horses and relinquish the easement” and occurring “under the most unusual circumstances,” i.e., surrendering to the significant pressure brought to bear on him by the LDS Church. In contrast, the City and the LDS Church characterize the proposal as an attempt by the City, the LDS Church, and many others in the community to seek an acceptable solution to avoid further litigation concerning the validity of the Pedestrian Easement, to bring an end to the divisiveness in the community, and to secure a significant benefit for the City. On December 16, 2002, the Mayor, in conjunction with the Alliance for Unity and James L. Sorenson, proposed a settlement (the “Settlement Proposal” or “Proposal”) that generally involved an exchange of the Easement for 2.125 acres of LDS Church-owned property in the Glendale neighborhood of the City, payment of half the City’s obligation to pay attorneys’ fees in Main Street I, and $5 million in cash from the Alliance for Unity. James Sorenson pledged $1 million in cash and land toward this $5 million goal, and the LDS Church also agreed to contribute an unspecified amount to the goal. The Mayor proposed that the land and cash be used for construction of community facilities in the Glendale neighborhood, home to many families of modest means. In exchange for the foregoing consideration, the Mayor proposed that the Easement be completely extinguished and that Main Street Plaza would become entirely private. The Settlement Proposal specifically provided that following extinguishment of the Easement, the public would have no rights to access or pass across the Plaza. The LDS Church, as the owner in fee, would determine if and when to allow the public on the Plaza, and it would have the absolute right to deny access to any person. E. The Public Prooess On January 8, 2003, the Mayor filed Petition 400-03-01 with the Salt Lake City Planning Commission to close, vacate, and abandon the Pedestrian Easement pursuant to the terms and conditions outlined in the Settlement Proposal. The City then held a series of community council meetings and City advisory board meetings to consider the Mayor’s. Proposal. At these meetings, which occurred during the spring of 2003, representatives of the May- or’s office made detailed presentations to the community councils and community organizations, and the following community groups approved the Mayor’s Proposal: Downtown Alliance, Capitol Hill Community Council, West Side Salt Lake Community Council, Chamber of Commerce, Greater Avenues Community Council, Central City Community Council, and People’s Freeway Community Council. During this time period, the City created a website to provide information to the public about the Mayor’s proposal, to provide transcripts of the “Question and Answer” segments of the community council meetings, and to receive additional public comment. On February 27, 2003, the Salt Lake City Transportation Division prepared a Pedestrian Impact Study of Part-Time or Full-Time Closure of the Main Street Plaza to Pedestrians (the “Pedestrian Impact Study”). On March 23, 2003, the Salt Lake City Transportation Advisory Board voted to support the Mayor’s Settlement Proposal, concluding in part that the impact on pedestrian traffic would be minor, based in part on the Pedestrian Impact Study. On April 9, 2003, the City Planning Staff issued its report on the Mayor’s Settlement Proposal, recommending that the Planning Commission recommend to the City Council that, among other things, the Pedestrian Easement be extinguished and the donation of the Glendale Property be accepted by the City. Following public comment the same day, the Planning Commission voted four to three against following the Planning Staff recommendation. In advance of the City Council’s consideration of the Mayor’s proposal, attorneys for the City, the LDS Church, the Alliance for Unity, and James L. Sorenson negotiated draft agreements for the City Council’s consideration. Those draft agreements were made public by the City and posted on the City’s website in advance of public hearings on the Mayor’s Proposal. As part of its due diligence for the proposed transactions, the City Attorney’s Office commissioned independent appraisals of the market value of the of the Pedestrian Easement and the Glendale Property by Phillip Cook & Associates. These appraisals demonstrated that implementation of the Mayor’s Settlement Proposal would result in the City’s receiving consideration worth more than ten times the value of the Easement. Plaintiffs have previously acknowledged that the Easement was appraised at $500,000. The LDS Church-owned land in the Glendale neighborhood was appraised at a value of $275,000. In addition to the Glendale land, the City was to receive cash and land from the Alliance for Unity and James L. Sorenson having a value of more than $5 million. Of this total, the LDS Church was to donate $250,000 in cash. Pursuant to the Mayor’s Proposal, the Church was also to pay $104,836.66 toward the City’s obligation to pay attorneys’ fees to the prevailing plaintiffs in the Main Street I case. In short, the City received cash and land valued at more than $5,375 million for the Pedestrian Easement, which was valued at $500,000. F. Approval by the City Council The City Council held public work sessions concerning the Mayor’s Proposal on May 27, May 29, and June 3, 2003, and a held public hearing for comment and discussion on June 3, 2003, which hearing was continued to June 10, 2003. The City Council heard comments from numerous citizens during the Public Comment segment of the City Council meetings and received many other written and oral comments from citizens. The City Council specifically considered the draft settlement agreements from the City, the LDS Church, the Alliance for Unity, and Soren-son. Following the conclusion of the public hearings, on June 10, 2003, the members of the City Council voted in favor of the Mayor’s Settlement Proposal six to zero, with one abstention. Ordinance No. 31 of 2003 (the “2003 Ordinance”) cites many of the purposes that would be advanced and many of the benefits the City would obtain by adopting the Mayor’s Proposal. It states that “the Settlement Proposal is consistent with the City’s primary objective in entering into the original transaction: the promotion of tourism and economic development.” In addition, in the 2003 Ordinance, the City Counsel also made the following findings: (1) if, following completion of the transaction, the [Church], as private owner of the Main Street Property, decides to close the Main Street Property to pedestrian access and passage, the impact on pedestrian traffic would be minor; (2) the City never intended in the original transaction that expressive activities would be preserved on the Main Street property; (3) the Court of Appeals decision has left the City with an unintended responsibility to regulate protected expressive activities on the Main Street Plaza, with the attendant risk of litigation; (4) even after the closure, vacation and abandonment of the Pedestrian Easement and resulting closure of the public forum on the Main Street Property, there will be ample alternate public forum space available for protected expressive activities in the immediate vicinity of the Main Street Property along North and South Temple Streets as well as in other areas of the City; (5) during 1998, the year prior to the original transaction, no free speech permits were requested from the City for the Main Street sidewalks between North and South Temple Streets; (6) the continued existence of the Pedestrian Easement is not necessary for use by the public as a sidewalk or pedestrian thoroughfare and closure, vacation and abandonment of the Pedestrian Easement will not be adverse to the general public’s interest; (7) there is a good faith dispute between the City and the Corporation of the Presiding Bishop over the impact of the Court of Appeals’ decision on their original agreement; (8) the controversy over the impact of the decision by the Court of Appeals on the original agreement between the City and the Corporation of the Presiding Bishop has had an extremely divisive and harmful effect on the Salt Lake City community; (9) the donation of the Glendale Property by [the Church] and the donations by the Alliance for Unity and James L. Sorenson will enable the City to construct new and expanded facilities that will provide significant benefits to the community; (10) the benefit of new community facilities in Glendale, promotion of tourism, resolution of divisiveness in the community, and voluntary settlement of the legal dispute between the City and the Corporation of the Presiding Bishop provide sufficient public policy reasons for the closure, vacation and abandonment of the Pedestrian Easement, and the closure of the Pedestrian Easement will enable the City to accomplish those public policy purposes; (11) the accomplishment of these public policy purposes through closure, vacation and abandonment of the Pedestrian Easement outweighs the benefits of any alternatives to the closure of the Pedestrian Easement; [and] (12) there is good cause for the closure, vacation and abandonment of the Pedestrian Easement and such action will not be detrimental to the public interest; 2003 Ordinance at 8-10. The 2003 Ordinance conditioned the vacation of the Easement upon the parties’ execution of the Settlement Agreement and the Deed Conveying Easement Rights and Amendment to Special Warranty Deed (the “Amended Deed”), instruments that were intended to formalize the Mayor’s Proposal. On June 19, 2003, shortly after the City Council passed the 2003 Ordinance, the Church and the City executed the Settlement Agreement. Among other things, the Settlement Agreement provides for the vacation of the Easement in exchange for consideration of land and cash in a total sum of over $5 million, as presented in the Mayor’s Settlement Proposal. Specifically, the Settlement Agreement provided, among other things, that the LDS Church would convey 2.125 acres of property (the “Glendale Property”) located at 1385 South 900 West, Salt Lake City Utah, it would provide additional consideration equaling (a) two hundred fifty thousand dollars ($250,000) through the Foundation’s contribution to the Alliance for Unity; and $104,586 in attorneys’ fees for the Main Street I litigation. In addition, the Alliance for Unity would provide to the City a total of at least Four Million Dollars ($4,000,000) for construction of the Community Facility and, at the City’s discretion, for furnishings, fixtures, and equipment for, and maintenance of the facility. James L. Sorenson agreed to donate to the City cash and/or land having the value of at least One Million Dollars ($1,000,000) for the same purposes. See Settlement Agreement, attached as Addendum 1 to the City’s Mem. in Supp. of Mot. to Dismiss Third Am. Compl. The Settlement Agreement, among other things, also provided that the City would close, vacate, and abandon and convey to [the Church] the Pedestrian Easement. It further states that “the City will own no interest whatsoever in the Main Street Plaza property except those interests arising from [the Church’s] obligation to use and maintain the Property as a landscaped space and the easements for emergency and public safety services and public and private utilities and the view corridor and fencing restrictions.” The City “also disclaim[ed] any right or authority to regulate any expression or conduct on the Property other than pursuant to [the City’s] police powers applicable to private property in general.” The Settlement Agreement also amended the 1999 Special Warranty Deed, among other ways, as follows: (1) Provisions regarding the Easement and regulating conduct on the Easement were deleted in their entirety. (2) A provision was added concerning the right of public access on the Property after the vacation of the Easement: 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 the public in relation to the Main Street Plaza Property, and nothing in this Settlement Agreement should be construed otherwise. The Parties do not intend to create any obligation, promise, dedication, servitude, or easement of any kind that would require the [LDS Church] to permit public access or passage. (3) A provision was added to protect the view corridor: “To ensure the preservation of the view corridor ... and the aesthetics of the Property and surrounding areas, [the Church] may not erect fences, walls, or gates on the Property without written approval of [the City], which approval shall not be unreasonably withheld. [The City’s] approval authority shall be exercised based on ‘aesthetic, safety, and security’ considerations and the need to preserve that view corridor ... and not on concerns about public access.” This provision also states that if a court of competent jurisdiction holds that this provision creates or establishes the basis for a First Amendment forum of any kind, the requirement that the Church must obtain approval from the City to erect fences, walls, and gates shall automatically terminate and be of no further force or effect. (4) A provision was added granting the City the right of re-entry if the Church fails to maintain the Plaza as a landscaped space, fails to allow the City access to the Plaza for the utility and public safety service easements, or fails to comply with the view corridor or fencing restrictions. The provision states that it shall not be interpreted to create or establish the basis for a First Amendment forum. (5) A provision was added stating that the “parties expressly intend and agree that the Property be private property and that [the Church] shall have full, complete and absolute control over all activities on and uses of the Property” and that if the right of re-entry creates a First Amendment forum, it shall automatically terminate. On Monday, July 28, 2003, after waiting the thirty-five day period prescribed in the Settlement Agreement, the City and the Church closed the transaction. The LDS Church executed a Special Warranty Deed conveying the Glendale Property to the City, and the Alliance for Unity and James Sorenson transferred funds and land to the City. In exchange, the City vacated the Easement by executing the Amended Deed. G. The Instant Lawsuit — Main Street II On August 7, 2003, Plaintiffs filed the instant action. On August 20, 2003, Plaintiffs filed an Amended Complaint. The City Defendants responded with a Motion to Dismiss the Amended Complaint. After a hearing was set on the motion to dismiss, the parties agreed that rather than moving forward on the motion to dismiss, Plaintiffs would file a Second Amended Complaint. Accordingly, Plaintiffs filed a Second Amended Complaint on October 8, 2003. In the Second Amended Complaint, Plaintiffs did not name Mayor Anderson as a defendant. On November 5, 2003, the LDS Church moved to intervene as a Defendant. On that same date, the City again filed a Motion to Dismiss, this time on substantive grounds. On November 7, 2003, Plaintiffs filed a Motion for Preliminary Injunction, a motion to expedite discovery, and a motion for an expedited hearing. On November 17, 2003 the City filed a Motion for Protective Order. On November 19, 2003, the court held a scheduling conference and granted the LDS Church’s Motion to Intervene. Just prior to the November 19, 2003 scheduling conference, Plaintiffs informed the court that they would be seeking leave to file a Third Amended Complaint. At the November 19, 2003 scheduling conference, the court granted the request. The court set a hearing for December 5, 2003 on the City’s Motion for Protective Order and Plaintiffs’ Motion for Expedited Discovery. The court also set a January 26, 2003 hearing on the City’s Motion to Dismiss and indi-eated that the court would decide at the December 5, 2003 hearing whether the preliminary injunction hearing would proceed at the same time, in light of the discovery sought by Plaintiffs. On November 20, 2003, the LDS Church filed a Motion for Protective Order, which was similar to the City’s previously filed motion. On December 2, 2003, Plaintiffs filed the Third Amended Complaint, which, among other things, renamed Mayor Anderson as a Defendant. On December 5, 2003, the court heard oral argument on Defendants’ Motions for Protective Orders and on Plaintiffs’ Motion for Expedited Discovery. The court took the issues under advisement, and, on December 10, 2003, just minutes before the court was going to issue its Order, the parties called to inform the court that they had reached a stipulation (the “Stipulation”) regarding the discovery disputes, and thus requested that the court not rule on the pending motions. In their Stipulation, the parties agreed that the LDS Church would make Bishop Burton, or his designee, available for a deposition, which would last no longer than one-half day. The City agreed to make Mayor Anderson available for a half-day deposition, and Defendants agreed not to oppose any attempt by Plaintiffs to take the deposition of Jon M. Huntsman, which would last no longer than one-half day. The Stipulation also permitted Plaintiffs to serve Defendants with a request for production of documents pursuant to Rule 34 by December 16, 2003, and Defendants would respond by January 5, 2004. Defendants were permitted to take the depositions of any of the Plaintiffs or any person for whom Plaintiffs submit an expert report or declaration. The Defendants also agreed not to object to Plaintiffs’ request to take the depositions of not more than two newspaper reporters regarding quotations they attributed to Mayor Anderson. The parties agreed that they would take no other discovery in relation to the pending Preliminary Injunction Motion. Pursuant to the Stipulation reached by the parties, the court issued an order permitting Plaintiffs to supplement their Motion for a Preliminary Injunction after they had completed discovery. The City Defendants and the LDS Church then filed Motions to Dismiss the Third Amended Complaint on December 18, 2003 and December 19, 2003, respectively. Plaintiffs filed their renewed Motion for Preliminary Injunction on January 13, 2004. After expedited briefing, on January 26, 2004, the court heard argument on Plaintiffs’ Motion for Preliminary Injunction and Defendants’ Motions to Dismiss, along with various motions to strike. The court took the issues under advisement, and, as indicated above, Plaintiffs continued to submit supplemental authority, as well as further argument, to the court during the following month, prompting Defendants to respond. H. Summary op Plaintiffs’ Arguments Plaintiffs allege that the sale of the Pedestrian Easement did not result from an arms-length negotiation. Rather, “[i]t resulted from undue influence exerted by the LDS Church and was made in the context of claims of bias, betrayal, and conduct by the Church, which was alleged by the Mayor himself, to be unethical, unprincipled, divisive, and unconstitutional.” Third Am. Compl. ¶ 51. They further allege that “[t]he Mayor also understood that his decision would be perceived by the public as pandering to the LDS Church and would reinforce the non-LDS community’s distrust of and cynicism about the influence of the LDS Church on the affairs of government.” Id. They claim that the relinquishment of the Easement is “nothing more than a fagade for viewpoint discrimination and [a] transparent effort to circumvent the Court of Appeals’ decision in Main Street I.” Id. ¶ 60. Thus, they contend, “[bjecause of Main Street’s historic and symbolic importance as the center of civil life, the transfer of the Plaza to the LDS Church conflates the role of government and Church in a way that would lead a reasonable observer to believe that the Church occupies the position of power and influence over government in Salt Lake City.” Id. ¶ 61. They claim that, rather than assume its constitutional obligation to regulate this quintessential public space pursuant to reasonable content-neutral time, place, and manner regulations, “the City acquiesced to the LDS Church’s demands that the City abandon the easement, and thus it created an exclusive and uniquely powerful platform for the Church to promulgate its message on a range of social, political, and religious issues, while prohibiting [Pjlain-tiffs and others from sharing their own messages on the same issues in the same place and in the same manner.” Id. ¶ 61. Specifically, Plaintiffs claim that Defendants violated Plaintiffs rights to freedom of expression and assembly under the First and Fourteenth Amendments to the United States Constitution. They contend that the Plaza remains a quintessential public forum, and the City and/or the LDS Church are constrained by the First Amendment from unreasonably interfering with First Amendment rights on Salt Lake City’s Main Street. To the extent that the police power over Main Street has been delegated to the LDS Church, Plaintiffs claim that the Church has assumed the mantle of government and is subject to First Amendment limitations. Plaintiffs further allege that the City’s actions violate the Establishment Clause because those actions (a) have the purpose and effect of promoting religion, and, in this case, a particular religion; (b) imper-missibly entangle church and state by giving the Church authority over an open-space pedestrian plaza in the heart of downtown Salt Lake City; and (c) imper-missibly endorse religion by conveying a message to those who are not LDS that they are outsiders who are not full members of their political community. Plaintiffs claim that the secular interests purportedly advanced by the transaction are a sham designed to deflect attention from the City’s improper sectarian motives for entering into this agreement. I. Summary of Defendants’ Arguments By contrast, the City and the LDS Church have moved for dismissal of the entire action. Specifically, they claim that Plaintiffs’ Free Speech claim must fail because the Plaza is now entirely private. They claim that it is no longer a public forum under the First Amendment, and the right of reentry is not a significant enough government property interest to trigger a public forum analysis. Moreover, they claim that the Tenth Circuit Court of Appeals specifically stated that the public forum created by the Easement could be eliminated by relinquishing the Easement to the Church. In addition, they claim that Plaintiffs’ Establishment Clause claim fails because Plaintiffs cannot meet their burden of demonstrating that the sale lacked secular benefits to the city or that the primary effect of the sale advanced or endorsed religion, or that it excessively entangled government with religion. The court will address each of these motions in turn. II. PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Plaintiffs have requested that this court “enjoin the City from arresting or interfering with speakers engaging in First Amendment activity on Main Street Plaza.” A. Legal Standard for Obtaining A Preliminary Injunction In order to obtain preliminary injunctive relief, the moving party must establish: (1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) that the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) that the injunction is not adverse to the public interest. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1177 (10th Cir.2003); SCFC ILC, Inc. v. Visa USA Inc., 936 F.2d 1096, 1098 (10th Cir.1991). Because a preliminary injunction is an extraordinary remedy, “the right to relief must be clear and unequivocal.” See Visa, 936 F.2d at 1098; Dominion Video Satellite v. EchoStar Satellite Corp., 269 F.3d 1149, 1154 (10th Cir.2001). Moreover, if a preliminary injunction alters the status quo, a plaintiff must “show that on balance the four [preliminary injunction] factors weigh heavily and compellingly in [its] favor.” O Centro, 342 F.3d at 1177 (quoting Visa, 936 F.2d at 1099); Salt Lake Tribune Publ’g Co., LLC v. AT & T Corp. 320 F.3d 1081, 1099 (10th Cir.2003). In Visa, the court found that the status quo “is defined by the reality of the existing status and relationships between the parties, regardless of whether the existing status and relationships may ultimately be found to be in accord or not in accord with the parties’ legal rights.” Id. at 1100 (emphasis in original). In the instant case, an injunction would alter the status quo — the LDS Church’s private ownership and control of the Easement. Accordingly, the higher standard applies in this case. The court finds, however, that Plaintiffs have not satisfied even the usual “clear and unequivocal” standard for obtaining a preliminary injunction. B. Irreparable Injury to Plaintiffs Irreparable harm is often presumed where a violation of First Amendment rights is shown. See Community Comms. Co., Inc. v. City of Boulder, 660 F.2d 1370, 1376 (10th Cir.1981). As discussed below, however, Plaintiffs have not met their burden of demonstrating that their First Amendment rights have been violated. Moreover, Plaintiffs’ delay in seeking an injunction undermines their argument that they will suffer irreparable harm if an injunction does not issue. Plaintiffs first became aware of the Mayor’s Settlement Proposal on December 16, 2002. After Ordinance No. 31 of 2003 passed on June 10, 2003, Plaintiffs had the opportunity to challenge the City’s action before the sale of the Pedestrian Easement. Danielle Eyer, Executive Director of the Utah Chapter of the ACLU, testified in her deposition that on July 7, 2003, three weeks before the closing, the ACLU’s Utah Board of Directors voted in favor of filing suit. Despite this decision, the ACLU decided to delay, apparently because of concerns that “the ACLU ... was not interested in ruining a good project for the City.” Ms. Eyer relayed these concerns to Plaintiffs’ counsel. Even after the closing, Plaintiffs waited months to seek injunctive relief. Any unnecessary delay in seeking relief “may be viewed as inconsistent with a claim that plaintiff is suffering great injury or, in the case of preliminary injunc-tive relief, that there is an urgent need for immediate relief and that a judgment would be rendered ineffective unless some restraint is imposed on defendant pending an adjudication on the merits.” 11A Wright, Miller & Kane, Federal Practice and Procedure § 2946 at pp. 113-14 (1995). “[P]reliminary injunctions are generally granted under the theory that there is an urgent need for speedy action to protect the plaintiffs’ rights. Delay in seeking enforcement of those rights, however, tends to indicate at least reduced need for such drastic, speedy action.” Citibank, N.A., v. Citytrust, 756 F.2d 273, 276 (2d Cir.1985). In this case, although the transaction closed on June 10, 2003, Plaintiffs did not file their Complaint until August 7, 2003. Yet, they did not request a preliminary injunction prior to the LDS Church’s semi-annual General Conference in October 2003, and, although they claimed that they needed injunctive relief prior to the holiday season when many visitors would come to see the lights on Main Street Plaza and the Salt Lake Temple grounds, they did not file their motion for a preliminary injunction until November 7, 2003, a full three months after their Complaint was filed, and at the same time, requested leave to conduct expedited discovery, which would be completed within thirty days. Notwithstanding Plaintiffs’ alleged urgency, Plaintiffs then amended their Complaint again, with the operative Third Amended Complaint not being filed until December 2, 2003. Ultimately, after the parties reached a stipulation concerning the discovery that would be permitted, Plaintiffs were granted leave to supplement their preliminary injunction motion by January 12, 2004. After expedited briefing by the parties, the motion was fully briefed on January 23, 2004, and the court heard argument on January 26, 2004. The court finds that Plaintiffs’ delay belies any irreparable injury to their rights. Further, Plaintiffs have ample alternative sites in the immediate vicinity on which to express their First Amendment rights. The City sidewalks run perpendicular to each end of the Plaza, and thus the issue of whether Plaintiffs can demonstrate on the Plaza is largely academic because the precise location of their protests will not impact their ability to communicate their messages. Indeed, the City has provided evidence that nearly all of the demonstrations against the Church before construction of the Plaza occurred on the City sidewalks on North Temple or South Temple, and not on the block of Main Street that is now covered by the Plaza. See Alexander Deck ¶¶ 14, 31. Denying injunctive relief would result in an extremely minor reduction in the amount of space available for free-expression activities near the LDS Church Campus. “The First Amendment does not guarantee an optimal setting for speech at all times and places.” Hale v. Dep’t of Energy, 806 F.2d 910, 918 (9th Cir.1986). Finally, the irreparable harm presumption does not attach because, as discussed below, Plaintiffs have not demonstrated a substantial likelihood of success on the merits. Accordingly, the court finds that Plaintiffs will not suffer irreparable harm if the injunction is not granted. C. BALANCE OF HARMS The LDS Church paid millions of dollars to purchase the Plaza property in order to create a peaceful venue that would unify its headquarters campus and become an integral part of Temple Square and the Church Administration Block. In the wake of Main Street I, however, Main Street Plaza became a magnet for protest, the venue of choice for those wishing to publicly insult the Church and its members. Between October 9, 2002, when the Tenth Circuit’s decision was issued, and July 28, 2003, when the Church’s settlement with the City closed, noisy and offensive protest became a regular occurrence on Main Street Plaza. In his affidavit, Bishop Burton has provided the court with examples of these protests. He testified that the protestors were so noisy that “their shouting could be heard and would cause disruption in the sacred rooms of the Temple and in other Church buildings around the Plaza.” Affidavit of H. David Burton (“Burton Aff.”) ¶¶ 48-49. Further, he testified that “the serenity of the Plaza will be destroyed during those periods in which protestors are present.” Id. ¶ 58(d). If the injunction is granted, the court finds that, rather than a place of tranquility, the Plaza will become a scene of turmoil, and the Church will not have control of its property, for which it paid millions of dollars. Moreover, an injunction would plunge the City back into the significant controversy it experienced after the Tenth Circuit’s decision in Main Street I. Such an injunction would necessarily require the City and the LDS Church to resolve their dispute regarding the continued existence of the Easement after Main Street I, the very dispute that resulted in the instant litigation. And, assuming that the Pedestrian Easement was — perhaps after further litigation — determined to exist, the City and the Church then would have to resolve the actual location of the Easement on the Plaza, devise time, place, and manner restrictions, and then likely face further litigation over such restrictions. In contrast to these significant harms to the City and the LDS Church, Plaintiffs will be inconvenienced by having to move the site of their protests to a nearby