“No harm, no foul.”
- The late Chick Hearn, LA Lakers broadcaster
“The City has looked at the shrine and determined that it does not pose any public safety or health issue. At this time there are no plans to remove it.”
-City spokesman Michael Graham essentially saying the same thing as Chick when explaining the city policy regarding a religious shrine on A Mountain.
About 100 feet west of the crazy convergence of Gates Pass Boulevard, Mission Road and Grande Avenue and about 25 feet up the side of Sentinel Peak on a rocky outcrop there sits a concrete half-cupola protecting a statue of Our Lady of Guadalupe.
It kinda looks like the rocks and if motorists are doing what they’re supposed to be doing – watching the road – it’s barely noticeable.
Which means it’s OK with the city of Tucson, even though it’s inside the boundary of Sentinel Peak Park, aka A Mountain. The city has long had a policy that allows for roadside shrines and memorials as long as they pose no hazard or impede rights of way.
“The city has looked at the shrine and determined that it does not pose any public safety or health issue. At this time there are no plans to remove it,” city spokesman Michael Graham said.
But this isn’t a white cross with some flowers around it in a median commemorating the death of a loved one in a motor vehicle accident. It’s a concrete structure four-feet tall and two and a half feet wide permanently fixed to the mountainside. It even has lights.
Tucson’s Freethought community says the shrine is a violation of the separation of church and state and has asked the city to remove it. By allowing the religious shrine to remain, the city is endorsing a religion, which the Constitution bars it from doing, the Freethinkers say.
A lot of atheists get their knickers in a twist about any expression of religion on public property but the First Amendment’s establishment clause is not a banishment of religion from the public square.
The Supreme Court has repeatedly upheld expressions of religion on public property. But in doing so it’s created a number of tests the state must meet in order for those expressions to be constitutional. One of those requires that the rules be neutral – any group, religious or secular, must have the same opportunity, whether it’s holding a demonstration in the city square or installing a monument.
The city’s roadside memorial policy is apparently neutral. Any spontaneous expression of grief along the roadway is permissible. Whether those expressions of grief are connected to religious beliefs is presumably irrelevant. Consider the secular ghost bikes placed along city roadways as memorials to bicyclists who have been killed.
But is the A Mountain concrete cupola a roadside shrine that just happens to be inside a city park boundary?
No.
The shrine used to be farther up the hill in a small hollow where a man 20 years ago placed a statue of Our Lady of Guadalupe as thanks for his being released from jail for a crime he didn’t commit.
Others found out about it and contributed their own religious artifacts over the years for reasons of their own.
But according to a 2011 story about the hillside shrine in the Arizona Daily Star, it was frequently vandalized or sometimes washed away in storms.
Sometime between April 2011 and now the permanent concrete shrine was constructed lower down the hill and closer to the road (a Google Maps Street View image dated April 2011, shows no concrete cupola atop the outcrop).
The older shrine was impermanent and innocuous and the hollow quite hard to see into from the base of the hill. Even if you had known it was there, you could barely see the statue and couldn’t see the small statues, veladoras, rosaries, flowers and cards placed around it from the road.
So it’s reasonable for the city to be unenthusiastic about policing the depositing of religious ephemera in a hidden part of a large city park.
But the concrete structure in the park changes the nature of this shrine.
The city is actually ignoring its own code by allowing it to persist. The code governing city parks does not allow anyone to “Construct or erect any building or structure of whatever kind, whether permanent or temporary in character…” [Sec. 21-3.1(4)]
The city shrugging its shoulders at the structure defies that law and potentially opens the door for anyone to place permanent monuments for any reason in any city park (or at least in Sentinel Peak Park) thanks to the Supreme Court’s neutrality rules.
If the city objects, prospective monument builders need only point to the little cupola on the side of A Mountain – the city either takes that one down or let theirs go up.
Can UA basketball fans erect a statue to Lute Olson in El Presidio Park or can Druids put up a replica of Stonehenge in Tucson Mountain Park, as long as they do “not pose any public safety or health issue?”
The city probably won’t slide down that slippery slope if the Freethought group doesn’t sue and if no one else chooses to start building monuments in city parks, religious or otherwise.
The city is hoping this just goes away and it probably will. Nevertheless, a precedent has been set and the potential for a nasty fight the city can’t win will remain as long as the A Mountain shrine exists as a permanent structure.
This isn’t a roadside shrine memorializing the loss of loved one in a traffic accident. It’s a permanent structure built inside a city park without a permit and the city should follow its own laws and remove it (giving it a post-dated permit simply opens the gate to the slippery slope).
Or, as a compromise, move the shrine out of the park and closer to the intersection and require its keepers to keep it impermanent.