By JENNIFER DOBNER | The Salt Lake Tribune
The ouster of the LGBTQ resource center Encircle from America's Freedom Festival Fourth of July parade in Provo has produced a wave of criticism against organizers, whose nonprofit receives hundreds of thousands of dollars in taxpayer money.
Social media posts dubbed the exclusion as discrimination, a state senator has launched a petition to block future public funding, and at least one legal expert says violations of the state and federal constitutions may have occurred.
Utah's largest parade — the Days of '47 event slated for Monday — has, for the fourth consecutive year, barred the group Mormons Building Bridges. But it isn't coming under the same kind of fire as the Freedom Festival.
The difference is public funding.
Days of '47 Inc. spokesman Greg James says his nonprofit doesn't accept government money and for that reason is free to adhere to its standards that bar parade entrants based on reasons that include political speech and advocacy.
Mormons Building Bridges, a group that promotes better relations between the LDS and LGBTQ communities, accepts that distinction.
Now sitting on the sidelines for its fourth Days of '47 Parade, it has had its application to participate in the Freedom Festival denied three times, group spokesman Kendall Wilcox said.
"Mormons Building Bridges fully supports the parade organizers' right to free speech and freedom of association," Wilcox said. "It's the public funds used to support the events that call that into question."
Public money • What about the $10 million in state funding and millions more in state and local tax dollars spent, along with LDS Church donations, to build the new Days of '47 Arena at the Utah State Fairpark?
James said those funds cannot be viewed as support for the parade and its nonprofit sponsor.
"The majority of the arena belongs to the state," James said. "And the rodeo is its own separate organization that runs its own budget and gets their own funding."
The separation of the rodeo into a nonprofit distinct from the parade-sponsoring organization occurred relatively recently — in 2014 — according to IRS tax records. But they remain closely linked.
The Days of '47 Inc., which runs the parade, is the "supported organization" of the Days of '47 Rodeo Salt Lake. The former exercises broad control over the rodeo, approving rodeo dates and activities, according to the tax documents. The two tax-exempt organizations also have a half-dozen board members in common.
Still, those raising the alarm about the Freedom Festival, aren't expressing concern about the Days of '47.
State Sen. Jim Dabakis, D-Salt Lake City, for one, is sharply critical of the former.
"You don't have a First Amendment right to have the taxpayers pay for your discrimination," said Dabakis, who called the Freedom Festival's decision reprehensible and launched an actionnetwork.org petition that has been signed so far by 12,000 people. "They want it both ways."
Dabakis did not respond to a request for comment on the Days of '47.
Paul Burke, a Salt Lake City attorney who called the Provo-based event problematic, said the rodeo undoubtedly benefits from having access to a new and improved stadium. He said he would be concerned only if arena managers ever appear to favor viewpoints held by rodeo organizers above others.
"A traditional public forum built with public funds should be operated in a viewpoint neutral fashion," Burke said. "The real test is whether the facility will be open to other tenants reflecting other viewpoints."
While the Days of '47 has consistently refused Mormons Building Bridges, it has twice invited Salt Lake City Mayor Jackie Biskupski to ride in the parade with her wife. Councilman Derek Kitchen and his husband, Moudi Sbeity, whose lawsuit legalized gay marriage in Utah, also have appeared in the parade, the mayor's spokesman Matthew Rojas said.
Biskupski is aware of the Mormons Building Bridges rejections and weighed that in deciding whether to accept the invitation to appear in the parade, Rojas said.
"For her, it came down to being with her wife in the parade," he said. "It's a great city event, and there is an element of the opportunity for [the mayor] and her wife to ride with dignity that is its own message."
Provo Parade • The America's Freedom Festival nonprofit received nearly $400,000 from government sources this past year, including $100,000 from state lawmakers, $113,000 from Utah County, and another $150,000 in cash and in-kind police and fire services from Provo, government records for all three entities show.
The money is only a fraction, but not an insignificant one, of the organization's budget, which tax records from 2015 show was $3.3 million.
America's Freedom Festival Executive Director Paul Warner did not respond to requests for comment from The Salt Lake Tribune, which sought an explanation of the event's decision to decision to dub Encircle an "advocacy group" and renege on a participation invitation issued weeks before the Fourth of July.
In a recent Daily Herald story, Warner said the festival has a constitutionally protected right to choose parade participants based on standards it alone sets.
A 1995 U.S. Supreme Court ruling did conclude that as a matter of free speech, a privately organized St. Patrick's Day parade in Boston could block a gay veterans group from marching.
And while the Freedom Festival and other organizations do have free speech rights, the governmental endorsement and funding trigger a constitutional tripwire, said Burke, the Salt Lake City attorney.
"The parade organizers get to decide what their message is," he said. "The problem here is that government has chosen to endorse and subsidize the expression, a viewpoint that is not consistent with the Utah and the federal constitutions."
On its website, the Freedom Festival states its purpose is to "celebrate, teach, honor and strengthen the traditional values of God, family, freedom and country."
If the festival is teaching about the value of God, then public funds are being used in violation of Utah's constitution, which states that "no public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment," Burke said, quoting the document.
Additionally, if the event is promoting traditional man-woman marriage over the established right of gay marriage, then the U.S. Constitution has been violated, he said.
"Utah's counties and cities may not use public funds to promote unconstitutional views," Burke said. "And they should not spend tax dollars to advocate for second-class citizenship of LGBT Americans."
Dabakis is considering proposing legislation to bar lawmakers from funding events with participation rules that exclude individuals or groups — "although I'm not sure it would get out of [the Senate] Rules [Committee]."
"I think a lot of the Legislature probably agrees with the discrimination," he said.
Sen. Curt Bramble, R-Provo, said no such legislation is needed. The Legislature already has sufficient checks and balances in place for weighing funding requests.
"It's called the appropriations committee process," said Bramble, whose wife serves on the Freedom Festival board.
The participation issue is hardly unique to the Freedom Festival, he added. Many other parades have rules that limit entries, particularly those related to political messaging, said Bramble, who pushed for the $100,000 the event got from state coffers. That includes parades that keep out state lawmakers, even while elected city officials are allowed to march or ride floats.
"We haven't protested," said Bramble. "But I think it's a delicate balancing act."
Provo Mayor John Curtis said his city views the parade and other events like it as good for the community and drivers of economic development. City leaders, he said, don't ask many questions about specific events rules or seek to impose their own rules.
"We have, for example a concert series," Curtis said, "and we don't tell them what band they can have and which ones they can't."
But questions about funding a privately run event with public funding, Curtis added are both fair and appropriate.
"They do need to be consistent about who gets to participate," he said. "Otherwise, they are discriminating."