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

The Supreme Court has yet to clarify the consequences for governments that allow private memorial crosses to remain and proliferate along the public roadways. Government speech endorsing religion is prohibited by the Establishment Clause whereas private speech endorsing religion is protected by the Free Speech and Free Exercise Clauses. This Article examines three options available to state policymakers. First, policymakers can prohibit all roadside memorials. While memorial makers have an interesting and cognizable Free Speech argument on the lack of alternative channels for ventilating their message, the Free Speech interests are likely outweighed by traffic safety and aesthetic interests. Thus, in theory a government that decides to ban all roadside memorials likely can do so without Free Speech concerns. But in practice, enforcement of such bans is often lax. Policymakers are coming to recognize that enforcing a complete ban is neither politically expedient nor practical. Second, policymakers can continue to ignore and turn a blind eye to the activity. However, permitting religious icons and symbols to remain and proliferate on public property risks violating the Establishment Clause, since governments do not generally allow messages to remain on public property if the government objects to the message. The tacit approval of the message risks appearing to endorse the message. Third, policymakers can create a limited public forum for the bereaved to express the two-fold message of remembrance of the deceased and caution to other drivers. Such a forum may satisfy the Free Speech interests of the memorial makers, as well as forestall the Establishment Clause concerns about government endorsement of religion. In such instances, the government could allow the bereaved to select a religious symbol, akin to selecting a religious symbol in national cemeteries, and customize the message on the memorial. When the editorial control over the message rests with the bereaved, and the government includes an appropriate disclaimer, it is unlikely a reasonable observer would conclude that the presence of religious symbols and messages on public property would amount to government endorsement of religion. Moreover, allowing a wide range of religious messages and symbols would support an inference of viewpoint and religious neutrality. PRIVATE MEMORIALS ON PUBLIC SPACE 3 Introduction 4 I. Toward an Understanding of the Roadside Memorial Phenomenon 8 A. Roadside memorials are growing in popularity 8 B. Road death is a “bad death” 10 C. Constructing the roadside memorial 13 D. Message of the roadside memorial 17 II. Public Opinion and Public Policy on Roadside Memorials 24 A. Public opinion on roadside memorials 24 B. Patchwork of public policies on roadside memorials 31 III. Roadside Memorials and the Free Speech Clause 37 A. Adequacy of alternative channels of communication when all roadside memorials are banned 37 B. Adequacy of alternative channels of communication when a uniform, official marker eliminates personal involvement in the roadside memorial 42 IV. Roadside Crosses and the Establishment Clause 43 A. Sometimes the display of creche scene on public property violates the Establishment Clause, but sometimes it does not. 44 B. Sometimes a government display of the Ten Commandments on public property violates the Establishment Clause, but sometimes it does not. 47 C. Sometimes religious displays on public property are government speech, which is immune from Free Speech challenges, but sometimes it is private speech on public property. 50 V. Constructing a Constitutionally Permissible Roadside Cross Memorial ......... 56 A. Total Ban 59 B. Do-Nothing-Approach 59 C. State-sponsored roadside memorial program 60 1. A limited public forum 61 2. Permissible limits on a limited public forum 63 Conclusion 65 4 PRIVATE MEMORIALS ON PUBLIC SPACE