Serra Cross on Mt. Rubidoux – Threatened by Lawsuit

Tomorrow, Tuesday, November 13, 2012, Riverside’s City Council will consider the “SALE OF 0.43 ACRE UNDERNEATH MT. RUBIDOUX CROSS IN RESPONSE TO THREAT OF LITIGATION FROM AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE”.

Americans United for Separation of Church and State (AU) is threatening to sue the City of Riverside because the cross that was first placed on top of Mt. Rubidoux over 100 years ago is on public land.

I believe in separation of church and state, but this is ridiculous.

Mt. Rubidoux is a City and County landmark. The cross is an iconic and historical landmark that was included in the donation of Mt. Rubidoux to the City of Riverside by Frank A. Miller in 1955.

The cross was originally built and dedicated to Junipero Serra in 1907. To me, it is more of a historical landmark dedicated to a historical figure than it is a religious symbol.

My view seems to be substantiated by the plaque unveiled in 1909 by William Howard Taft, our 27th President, which reads:

THE BEGINNING OF CIVILIZATION IN CALIFORNIA
—–
FRA JUNIPERO SERRA
APOSTLE
LEGISLATOR
BUILDER
—–
TO COMMEMORATE HIS GOOD
WORKS THIS TABLET IS HERE
PLACED
—–
UNVEILED BY
WILLIAM HOWARD TAFT
TWENTY SEVENTH PRESIDENT
OF THE
UNITED STATES
OCTOBER 12 A.D. 1909

Junipero Serra, if you remember from grade school history, is an important historical figure in the State of California.

From PBS’ website:

Junipero Serra is still a well-known figure in California, a virtual icon of the colonial era whose statue stands in San Francisco’s Golden Gate Park and in the U.S. Capital. [...]

More than two centuries after his death, Junipero Serra is still a pivotal figure in California history and the history of the American West [...].

From a bill approved in the California legislature in 2000:

WHEREAS, The original route of what is known today as El Camino Real (Highway of the Kings) began as a footpath used by the Franciscans and Father Junipero Serra in the late 1700′s that eventually connected 21 missions along a 700 mile stretch of road in this state;

Why the history lesson? I have read some of the court documents cited in the letter from AU, and it seems that history matters. For instance, AU cites Trunk v. City of San Diego, which deals with the cross atop Mount Soledad in La Jolla. In its 2011 opinion to reverse a summary judgment in favor of the government, the Ninth Circuit Court of Appeals wrote:

1. The Importance of Setting and History

Secular elements, coupled with the history and physical setting of a monument or display, can — but do not always — transform sectarian symbols that otherwise would convey a message of government endorsement of a particular religion.

What is the history of the Mt. Soledad cross? In the Court’s opinion, it wrote the following (emphasis added):

Much lore surrounds the Cross and its history. But the record is our guide and, indeed, except for how they characterize the evidence, the parties essentially agree about the history. A cross was first erected on Mount Soledad in 1913. That cross was replaced in the 1920s and then blew down in 1952. The present Cross was dedicated in 1954 “as a reminder of God’s promise to man of everlasting life and of those persons who gave their lives for our freedom. …” The primary objective in erecting a Cross on the site was to construct “a permanent handsome cast concrete cross,” but also “to create a park worthy of this magnificent view, and worthy to be a setting for the symbol of Christianity.” For most of its history, the Cross served as a site for annual Easter services. Only after the legal controversy began in the late 1980s was a plaque added designating the site as a war memorial, along with substantial physical revisions honoring veterans. It was not until the late 1990s that veterans’ organizations began holding regular memorial services at the site.

According to the plaques surrounding it, the Mt. Rubidoux cross was dedicated to Junipero Serra from day one. President Taft’s plaque from 1909 reinforces this intent. I am not an attorney and I do not know all of the history surrounding the Mt. Rubidoux cross, but it seems that these facts are relevant to determining whether the cross is an endorsement of religion or a non-religious landmark. I believe the latter.

Unfortunately, City staff recommends selling the land underneath the cross in an arm’s length transaction to the highest bidder without even attempting to fight the legal challenge.

From the City Council Memorandum:

There are four possible responses to the Americans United letter. First, the City can take no action and risk the filing of the lawsuit as threatened by Americans United. This option is not recommended because of the established case law, the costs of defending the action and the City’s exposure to payment of the Plaintiff’s attorney’s fees and costs of suit.

The second option would be to remove the cross from Mt. Rubidoux and thus avoid any litigation since the legal issue would be moot. Similarly, a third option would be for a private party to accept ownership of the cross and display it on private property.

Lastly, the City could sell a portion of the land surrounding the cross through a public bidding process to the highest bidder as have several cities faced with the same legal issue. Staff recommends this fourth option.

I first learned about this from a Press Enterprise article. Every comment I have read on Facebook in response to the article is supportive of the cross.

Included in the City’s Memorandum is a draft Quitclaim Deed that includes an easement to provide unrestricted access to the property being sold. The deed also protects the four plaques placed at the site of the cross.

Unless I missed it in the document, the cross itself, however, does not seem to be explicitly protected. In fact, the way a few bullet points are worded makes it seem that the cross could be removed or replaced with a less visible one:

8. Should the Cross currently on the Property remain there, it shall not be illuminated nor in any way lit through any source of illumination, direct or indirect, unless consistent with past practices. Any utilities required for illumination shall be at Grantee’s sole cost and expense.

C. No City, state, federal or any other government funds may be used in connection with the Property so long as the Cross remains on the Property, including without limitation, funds for the purchase or maintenance of the Property. [...]

I. Grantee may, in its discretion, take reasonable steps to maintain, repair, or replace the existing Cross, so long as neither the size nor the visibility of the Cross is increased in any manner.

However, the Deed does specify the following:

J. Notwithstanding any other deed restriction to the contrary, additions, modifications and proposed demolishing of any structures on the Property must comply with Title 20 of the Riverside Municipal Code.

Title 20 essentially provides the rules and procedures governing items, areas, structures, etc. that have special significance in the City. An excerpt from Chapter 20.25.010:

A Certificate of Appropriateness is required before any person restores, rehabilitates, alters, develops, constructs, demolishes, removes or changes the appearance of any designated Cultural Resource, eligible Cultural Resource, any element in a geographic Historic District (contributing and non-contributing), or, a contributing feature or contributor to a Neighborhood Conservation Area.

Will Title 20 save the cross if the new owner doesn’t want it there anymore? I hope so.

We love hiking up Mt. Rubidoux to see the cross, the flag and the great view. I hope that the cross is protected.

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Click here to read the full Memorandum to the City Council along with the letter from Americans United and the draft Quitclaim Deed.

Click here for the Facebook page of Americans United for Separation of Church and State.

Click here to see a picture of President Taft’s plaque taken in 1909.