Private Memorials on Public Space: Roadside Crosses at the Intersection of the Free Speech Clause and the Establishment Clause

• Publication year: 2021

92 Nebraska L. Rev. 124. Private Memorials on Public Space: Roadside Crosses at the Intersection of the Free Speech Clause and the Establishment Clause

Private Memorials on Public Space: Roadside Crosses at the Intersection of the Free Speech Clause and the Establishment Clause

Amanda Reid(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 125

II. Toward an Understanding of the Roadside Memorial Phenomenon .......................................... 130
A. Roadside Memorials Are Growing in Popularity . . . . 130
B. Road Death Is a "Bad Death" ...................... 131
C. Constructing the Roadside Memorial ............... 134
D. The Message of the Roadside Memorial ............ 137

III. Public Opinion and Public Policy on Roadside Memorials ............................................ 143
A. Public Opinion on Roadside Memorials ........................................ 143
B. Patchwork of Public Policies on Roadside Memorials ........................................ 149

IV. Roadside Memorials and the Free Speech Clause ...... 155
A. Adequacy of Alternative Channels of Communication When All Roadside Memorials Are Banned ........................................... 156
B. Adequacy of Alternative Channels of Communication When a Uniform, Official Marker Eliminates Personal Involvement in the Roadside Memorial ......................................... 160

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V. Roadside Crosses and the Establishment Clause ....... 161
A. Sometimes the Display of a Cr?che Scene on Public Property Violates the Establishment Clause, but Sometimes It Does Not ............................ 162
B. Sometimes a Government Display of the Ten Commandments on Public Property Violates the Establishment Clause, but Sometimes It Does Not . 165
C. Sometimes Religious Displays on Public Property Are Government Speech, Which Is Immune from Free Speech Challenges, but Sometimes They Are Private Speech on Public Property ................. 168

VI. Considering a Constitutionally Permissible Roadside Cross Memorial ....................................... 173
A. Total Ban on All Roadside Memorials .............. 176
B. Do-Nothing Approach Toward Roadside Memorials . 178
C. State-Sponsored Roadside Memorial Program ...... 179
1. A Limited Public Forum ....................... 180
2. Permissible Limits on a Limited Public Forum . 182

VII. Conclusion ............................................ 184

"It seems good to mark and to remember for a little while the place where a man died."(fn1)

I. INTRODUCTION

Private roadside memorials are part of a growing trend among the bereaved who seek to "make sense of senseless deaths" along the public roadways.(fn2) These memorials, which often feature a Latin cross, are part of deeply meaningful bereavement practices that support the grieving process. As such, these memorials are created to satisfy a human need during a time of crisis and are, therefore, largely constructed without regard to the legality of erecting such markers.(fn3) Courts have yet to provide clear guidance on the constitutionality of erecting and maintaining these private memorials on public spaces. This Article considers the constitutional guideposts for evaluating roadside memorial crosses and offers some practical solutions for policymakers struggling to balance the needs of the bereaved with the interests of the community.

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These memorials are intensely personal, idiosyncratic expressions motivated by a seemingly senseless death.(fn4) Senseless deaths along the roadways surprise and shock us because modern technological advances lull us into thinking we have some measure of control over death.(fn5) Roadside memorials are most often created by friends and family members of teenagers who die in car crashes.(fn6) Scholars confirm that public opinions about roadside memorials are mixed: "Some claim never to see them, some are angered by them, some place them by the side of the road and never go back, others tend them regu-larly."(fn7) Public officials are often concerned about the visual distraction and traffic hazards these memorials can create.(fn8)

Two instances, one from Massachusetts and the other from Australia, illustrate some of the tension between the needs of the bereaved and the interests of the public. In Shutesbury, Massachusetts, a seventeen-year-old died in a one-car accident, and the teen's father constructed a roadside cross to commemorate his "last alive" place.(fn9) Two homeowners who lived near the accident site wanted the cross removed. The cross commemorated the site at the end of one of the homeowner's driveway for over six years. The homeowners said it was a constant, painful reminder of the night they and other neighbors went to aid the dying teen.(fn10)

In Ormeau, Australia, a nineteen-year-old was struck and killed by a vehicle as he walked home. His memorial was thrice vandalized when the teen's laminated photograph was taken down and the flow-

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ers were removed. A note was left on the memorial site explaining the removal: "The community of Ormeau have [sic] endured this memorial site for one year and two months and we feel that is by far long enough."(fn11) The note also admonished the teen's parents that the roadside was not a gravesite and that the family should be thoughtful of the community. In response, the teen's parents proclaimed the right to grieve for as long as necessary: "We never put the cross there to offend anyone. This has absolutely gutted our family. It's not always going to be there, but it should be up to us to take it down whenwe're ready."(fn12)

Within the legal scholarship there has been no systematic examination of the roadside memorial phenomenon or the animating forces behind the growing popularity of commemorating the "last alive" place of a loved one.(fn13) Understanding the phenomenon is an important first step in analyzing the Free Speech and Establishment Clause issues that are raised by the presence of these private memorials on public space. The Supreme Court has emphasized that "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect."(fn14) This Article joins the legal scholarship exploring "mixed speech," which is neither purely private speech nor purely government speech.(fn15)

This Article canvasses the interdisciplinary literature devoted to the roadside memorial phenomenon and then examines the Free

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Speech interests of memorial makers and the Establishment Clause concerns raised by having private crosses along public roadways. Part I describes the history and animating forces behind the roadside memorial phenomenon. Part II traces public opinion and public policies regarding roadside memorials. In response to this growing phenomenon, state and local policymakers have adopted a patchwork of regulations that range from allowing and promoting roadside memorials to banning and removing all privately made memorials. Public sentiments mirror this range of policies with some individuals respecting and applauding roadside crosses, while others within the community object to the macabre eyesores that seek to sanctify the public roadways. Parts III and IV set out the Free Speech and Establishment Clause framework within which the roadside memorial phenomenon rests. Memorial makers have a Free Speech claim to erect a marker on the "last alive" place of a loved one, and governments must be careful not to appear to endorse a religious message and violate the Establishment Clause by allowing religiously themed markers to remain on public property.(fn16)

The unresolved question that is explored in Part V is whether a government creates grounds for an Establishment Clause challenge by either erecting or allowing roadside crosses to remain along public roadways. It is unclear what the consequences are for states that allow private memorial crosses to remain on public roadways. It is also unclear what happens when official, state-sponsored markers are supplemented with private crosses and religious messages, which the government does not remove.

Private religious speech in a designated or traditional public forum is generally free from Establishment Clause concerns.(fn17) However, private religious speech may lose its "purely private" nature by its placement in a public space.(fn18) The public roadways have not been treated as traditional public fora where individuals can express themselves without government restraint or limitation. And by not removing the private religious displays, it is unclear if a government runs

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the risk of appearing to tacitly adopt the religious message.(fn19) The Supreme Court in Pleasant Grove City, Utah v. Summum reflected this position when it explained, "It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated."(fn20) Therefore, according to the Court, "Because property owners typically do not permit the construction of such monuments on their land, persons who observe donated monuments routinely-and reasonably-interpret them as conveying some message on the property owner's behalf."(fn21)

Monuments and symbols are subject to more than one interpretation. And these monuments and...