The Crossroads: Roadside Memorials, Free Speech & The Establishment Clause

By Amanda Reid*
Assistant Professor of Law

“It seems good to mark and to remember for a little while the place where a man died.”[1]

To “make sense of senseless deaths” along the public roadways, private roadside memorials are part of a growing trend among the bereaved.[2] These memorials often feature a Latin cross and are part of deeply meaningful bereavement practices, which support the grieving process. They are created to fulfill a human need during a time of crisis and are, therefore, largely constructed without regard to the legality of erecting such markers.[3] Courts have yet to provide clear guidance on the constitutionality of erecting and maintaining these private memorials on public spaces.

Roadside memorials are intensely personal, idiosyncratic expressions motivated by a seemingly senseless death.[4] Senseless deaths along the roadways are surprising and shocking because modern technological advances lull us into thinking we have some measure of control over death.[5] Roadside memorials are most often created by friends and family members of teenagers who die in car crashes.[6] 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 regularly.”[7] Public officials are often concerned about the visual distraction and traffic hazard these memorials can create.[8]

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 17-year-old died in a one-car accident, and the teen’s father constructed a roadside cross to commemorate his “last alive” place.[9] Two homeowners who live near the accident site want the cross removed. The cross has commemorated the site at the end of one of the homeowner’s driveway for over six years. The homeowners say it serves as a constant, painful reminder of the night they and other neighbors went to aid the dying teen.[10]

6259046323_3d3eac9443_oIn Ormeau, Australia, a 19-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 flowers were removed. A note was left on the memorial site explaining the removal: “The community of Ormeau ha[s] endured this memorial site for one year and two months and we feel that is, by far, long enough.”[11] 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 claimed 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 when we’re ready.”[12]

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 spaces. 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.”[13]

Private religious speech in a designated or traditional public forum is generally free from Establishment Clause concerns.[14] However, private religious speech may lose its “purely private” nature by its placement in a public space.[15] The public roadways have not been treated as traditional public fora where individuals may express themselves without government restraint or limitation. And by not removing the private religious displays, it is unclear if a government risks appearing to tacitly adopt the religious message.[16] 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.”[17] 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.”[18]

Monuments and symbols are subject to more than one interpretation. And these monuments and symbols can communicate a message on behalf of more than one speaker. The roadside crosses undoubtedly speak on behalf of the private individuals who were motivated to erect them. But, by allowing the roadside crosses to remain on public property, the government may also passively adopt the message of the memorial cross.

The proliferation of roadside memorials poses a problem for public officials, who are in an ongoing quandary concerning how to balance traffic safety and the aesthetic interests of the community with the grieving process of the bereaved.[19] Balancing the interests of road safety and maintenance, visual blight, and Establishment Clause concerns with the needs of the grieving is “a public relations minefield.”[20] Roadside memorials have been a source of controversy and debate in both the United States[21] and in other countries around the world.[22]

Roadside memorials serve as a powerful signifier of death and space. While these symbols do not lend themselves to a single message or meaning, they undoubtedly serve an important expressive function for the loved ones of the deceased. [23] The memorial speaks as much for the memorial maker as it does the loved one who is memorialized by reflecting the maker’s image of the loved one. [24]

For memorial makers the place of the memorial is inextricably intertwined with the message of the memorial that moving the memorial to another place would not be an ample and adequate alternative.[25] A cemetery or other memorial site is not an adequate substitute for a roadside memorial because the “last alive” place is deeply important to memorial makers. The site is of supreme importance because it is sanctified by the spilled blood of the loved one.[26] These roadside memorials leave visible and poignant reminders of death on public space.[27] Justice John Paul Stevens has acknowledged that sometimes “the location of the sign is a significant component of the message it conveys.”[28] By removing these memorials from the site of death, the message of the memorial is altered. Thus, the location of the speech is part of the expressive message.

But the expressive right to memorialize a loved one is not unbounded. The Supreme Court has noted that “the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.”[29] And while roadside memorials can be deeply meaningful and healing for the mourners, some observers object to the sanctification of public roadsides.

Those who voice criticism suggest that the roadside memorials are “disingenuous” or “personal propaganda,” the makers are “faking it for attention,” or the memorial is a “pious form of littering.”[30] Memorials on public spaces are situated to draw in strangers to share in the grieving process.[31] Some memorials are clearly visible and are intended to be seen, while others are more personal and private. [32] Participating in a stranger’s roadside memorial can promote a sense of group solidarity, “a symbolic coming together of the community in mourning.”[33] Yet, sometimes strangers do not welcome being drawn into the grieving process because it brings unwanted reminders of death. [34] For some, memorials are an unwelcome testament to the fragile and fleeting nature of life.

These memorials serve as powerful reminders of the inherent dangers of driving. And viewers receive unsolicited reminded of these dangers while driving down the same roadway where someone else died.[35] According to Doug Tindall, a maintenance engineer for the Oregon Department of Transportation (DOT), his department “regularly receives calls regarding roadside memorials. Most callers want displays removed because they don’t want continual reminders of someone’s death in a traffic accident.”[36] Memorial-making can be productive and healing for the maker, but the memorial can also bring unwanted, “vicarious trauma” to other drivers who are forced to experience it.[37]

In addition to viewing a memorial as an unwanted reminder of tragic loss, some individuals see a memorial as a “macabre eyesore.”[38] Journalist Stephanie Warsmith observed, “The teddy bears turn soggy and gray. Flowers wilt. Handwritten tributes become illegible. Rather than serving as a tribute to someone who died, they become an eyesore.”[39]

More than just an issue of aesthetics, roadside memorials raise concerns about road maintenance and road safety. These memorials can interfere with road maintenance and mowing operations.[40] Mementos left at roadside memorials can become hazardous projectiles when tall grass is mowed.[41] Roadside memorials can also pose a safety hazard to other drivers.[42] Professors of Sociology George Dickinson and Heath Hoffmann, who surveyed state DOT officials, found that 70% of officials said roadside memorials were considered a safety hazard in their state.[43] An Arizona DOT spokesperson reported that of the 4,000 rear-end collisions that occurred in a year, “a troubling number involved drivers who stopped to view roadside memorials.”[44] In Wyoming, the DOT considers roadside memorials dangerous and cited an accident where the death of a child was attributed to a driver who was distracted by a memorial for two young pedestrians killed earlier at the same site.[45] And in Texas, a young woman was struck and killed by a car while she was visiting the roadside memorial of her cousin following the cousin’s funeral.[46]

In light of experiences like these, some state officials have concerns about the safety hazards posed by roadside memorials.[47] However, the traffic safety researchers who have examined the hazards posed by these memorials have found them to be generally safety-neutral. Two studies report no statistically significant effect from roadside memorials.[48] And one study found that, while drivers were less likely to run through red lights at intersections with roadside memorials,[49] the researcher, Professor Richard Tay, warned that such memorials could raise “other safety concerns, including potential hazards to pedestrians, cyclists and maintenance workers.”[50] Professor Tay also cautioned that leaving roadside memorials completely unregulated could raise safety concerns because “[w]ithout some forms of restrictions in place, some memorials erected may become a potential hazard due to their size and materials used.”[51]

State and local governments across the country have adopted a patchwork of policies and regulations for roadside memorials.[52] Policymakers struggle to balance the needs of the bereaved and the needs of the community. Many governments are considering appropriate limits on roadside displays as a way to balance these needs.[53] Nearly half of the states have adopted some policy regarding the placement of roadside memorials.[54] Policies vary widely with some states expressly permitting private markers,[55] some allowing only state-sponsored markers,[56] some having no express policy, [57] and some expressly prohibiting all private roadside markers—albeit with lax enforcement. Roadside memorials are prohibited as an obstruction or encroachment of a highway in states like Indiana,[58] Iowa,[59] Montana,[60] and North Dakota.[61] But these laws are often not enforced.[62] In states where erecting a roadside memorial is prohibited, public officials often turn a blind eye to memorials out of respect.[63]

Scholars have found a common theme of deference among DOT officials, who try to balance safety concerns while simultaneously respecting a family’s need to grieve for the loved one.[64] State officials are generally sensitive to the grief of the loved ones and grant a certain “grace” to these memorials, notwithstanding any official policy. [65] In states where roadside memorials are illegal, authorities often leave the memorials in place unless a complaint is lodged. These local agencies take the unofficial stance of acknowledging the need for individuals to grieve and leave most memorials undisturbed.[66]

If policymakers either ignore or expressly permit roadside crosses, it remains unresolved whether governments open themselves up to an Establishment Clause challenge by tacitly or expressly permitting crosses to remain on public lands. The Establishment Clause has often been employed as the basis to challenge the display of religious symbols on public property. For some in the community, the endorsement of religion through displays of religious symbols on public lands undermines respect for diversity of faith traditions and moral philosophies, whereas others view the invalidation of public displays of religious symbols as evidence of hostility toward religion. This is a hotly contested area of the law, and the Supreme Court’s jurisprudence on the constitutionality of religious symbols on public property continues to evolve.[67]

In this evolving jurisprudence, the Court has held that sometimes a government may erect a crèche, or nativity scene,[68] on public property, but sometimes it may not.[69] Sometimes a city may display the Ten Commandments on public property, but sometimes it may not.[70] And 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.[71] Current justices have noted the lack of clarity in the current Establishment Clause jurisprudence.[72]

Governments must be careful not to appear to endorse religion by adopting the message of the memorial cross on public land. As Justice David Souter observed, “[W]henever a government maintains a monument [that] has some religious character, the specter of violating the Establishment Clause will behoove it to take care to avoid the appearance of a flatout establishment of religion, in the sense of the government’s adoption of the tenets expressed or symbolized.”[73] To assess Establishment Clause concerns created by roadside crosses on public roadways, it is important to identify both the speaker and the message.

Yet is may be unclear who the speaker is, or what the message is, when a roadside cross is displayed on public property. In Pleasant Grove City, Utah v. Summum, the Court recognized that “it frequently is not possible to identify a single ‘message’ that is conveyed by an object or structure” displayed on public property. [74] While the Court concluded that a permanent monument displayed in a public park is “best viewed as a form of government speech,”[75] the donee government and memorial donor may not share a singular, unified message. The Court acknowledged “the thoughts or sentiments expressed by a government entity that accepts and displays such an object may be quite different from those of either its creator or its donor.”[76] Thus, the message of the original creator of the display may differ from the message of the entity that expressly or tacitly accepts the display.[77]

In addition to the uncertainty about the speaker, there is uncertainty about the message communicated by roadside crosses on public property. The Supreme Court’s Establishment Clause jurisprudence contemplates that a display can have multiple meanings and messages. Justice Stephen Breyer, concurring in Van Orden v. Perry, concluded the “religious aspect” of the Decalogue display did not predominate.[78] And the Court in McCreary County v. ACLU of Kentucky concluded, after examining the iterations of the Decalogue displays, that the displays failed the secular purpose prong of the Lemon test because the dominant religious nature of the displays was unmistakable.[79] The notion that a religious aspect or a religious nature can predominate implies there are other aspects or messages that do not predominate, yet still exist. This suggests a multiplicity of meanings or messages can exist within a display. This multiplicity of meaning was also reflected in Summum: “[T]he monument may be intended to be interpreted, and may in fact be interpreted by different observers, in a variety of ways.”[80] The Summum Court also suggested a certain indefiniteness of meaning because the message of a display may not be static: “The message that a government entity conveys by allowing a monument to remain on its property may also be altered by the subsequent addition of other monuments in the same vicinity.”[81]

Roadside memorials are indeed multivocal; they can simultaneously communicate more than one message, on behalf of more than one speaker. Individually, the roadside memorial communicates a multilayered message of remembrance of the deceased and warning to other drivers.[82] Collectively, the phenomenon communicates a critique against modernity—modern transportation, modern culture, modern death practices, and modern religion.[83] Identifying a single, predominant message can sometimes be difficult, and such messages may change over time. A single, festooned memorial placed by a roadway sends a different message than a mass of memorials along a stretch of highway.

Memorial makers are avoiding readily available alternative avenues for ventilating their expression. For some bereaved, these roadside memorials meet a human need that interment in a cemetery cannot.[84] By avoiding or supplementing the cemetery memorial, these bereaved are communicating that the cemetery is an inadequate avenue for their expression. The growing popularity of this mode of expression raises traffic safety, aesthetics, and religious neutrality concerns. The roadside memorial phenomenon thus lies at the crossroads of cultural, social, religious, and legal forces.[85]

 

* Assistant Professor, Florida Coastal School of Law. Ph.D., University of Florida, College of Journalism and Communications, 2004; J.D., University of Florida, Levin College of Law, 2004; M.A., Florida State University, Speech Communication, 1999; B.A., Florida State University, Communication and Philosophy, 1998.

[1] John Steinbeck, The Log From the Sea of Cortez 70 (1941).

[2] Robert M. Bednar, Denying Denial: Trauma, Memory, and Automobility at Roadside Car Crash Shrines, in Rhetoric, Remembrance and Visual Form 128, 129, 134 (Anne Teresa Demo & Bradford Vivian eds., 2012); Charles O. Collins & Charles D. Rhine, Roadside Memorials, 47 Omega 221, 221 (2003).

[3] Holly Everett, Roadside Crosses and Memorial Complexes in Texas, 111 Folklore 91, 96 (2000); Jon K. Reid & Cynthia L. Reid, A Cross Marks the Spot: A Study of Roadside Death Memorials in Texas and Oklahoma, 25 Death Stud. 341, 349, 352 (2001).

[4] Jennifer Clark & Majella Franzmann, Authority from Grief, Presence and Place in the Making of Roadside Memorials, 30 Death Stud. 579, 584 (2006); C. Allen Haney et al., Spontaneous Memorialization: Violent Death and Emerging Mourning Ritual, 35 Omega 159, 162 (1997).

[5] Haney et al., supra note 4, at 161.

[6] Collins & Rhine, supra note 2, at 226 (“Among the 18 deaths documented in the survey, the average victim was 17, with a range from 7 months to 34 years.”); Reid & Reid, supra note 3, at 347 (“The modal age was 17, with 11 [of 78] of the deceased being of this age. The next closest age in frequency was 19, with 4 decedents.”).

[7] Reid & Reid, supra note 3, at 341.

[8] See, e.g., Arizona Removing Roadside Memorials: Families Upset Over State Policy; Officials Point to Safety Concerns, The Arizona Republic, Oct. 6, 2007, at A1, available at 2007 WLNR 27636278 (“The roadside memorials, [the Arizona Department of Transportation] says, are too much of a safety hazard and can be too distracting for motorists.”).

[9] Nick Grabbe, Leverett Neighborhood Wrestles with Weight of Cross, Amherst Bull. (June 27, 2008), http://www.amherstbulletin.com/story/id/98909/, cited in George E. Dickinson & Heath C. Hoffmann, Roadside Memorial Policies in the United States, 15 Mortality 154, 163–64 (2010).

[10] Grabbe, supra note 9; cf. Residents Condemn Roadside Gravestone, Plymouth Evening Herald, Aug. 30, 2008, at 5, available at 2008 WLNR 16446088 (“Since the appearance of the inscribed headstone we [government officials] have received many complaints from local residents who find it very distressing to be reminded of this young man’s tragic death when they pass every day.”).

[11] Selina Steele, Hard Road – Vandals Target Memorials, Sunday Mail (Queensland, Australia), Feb. 11, 2001, at 7, cited in Clark & Franzmann, supra note 4, at 587; see also Vandals Target Roadside Memorial, The Mississauga News, Oct. 4, 2012, at 1, available at 2012 WLNR 21153366 (“A Mississauga man [in Canada] is heartbroken that items are continually being removed from his son’s roadside memorial in Georgetown.”).

[12] Steele, supra note 11, cited in Clark & Franzmann, supra note 4, at 587.

[13] Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (emphasis in original) (quoting Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990)).

[14] Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 767, 770 (1995) (plurality opinion) (“By its terms [the Establishment] Clause applies only to the words and acts of government. It was never meant, and has never been read by this Court, to serve as an impediment to purely private religious speech connected to the State only through its occurrence in a public forum.”).

[15] See Claudia E. Haupt, Mixed Public-Private Speech and the Establishment Clause, 85 TUL. L. REV. 571, 588 (2011).

[16] See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 471 (2009); see also Capitol Square, 515 U.S. at 800 (Stevens, J., dissenting) (“[S]igns and symbols are generally understood to express the [property] owner’s views.”).

[17] Summum, 555 U.S. at 471.

[18] Id. at 471. A government that speaks through a religious display is making a dangerous gamble. Chief Justice John Roberts’ first question at Summum oral argument reflected this danger:

[Y]ou’re really just picking your poison, aren’t you? I mean, the more you say that the monument is Government speech to get out of the . . . Free Speech Clause, the more it seems to me you’re walking

into a trap under the Establishment Clause. If it’s Government speech, [declining to display Summum’s

“Seven Aphorisms” stone monument in a public park] may not present a free speech problem, but what

is the Government doing speaking – supporting the Ten Commandments?

Transcript of Oral Argument at 4, Summum, 555 U.S. 460 (2009) (No. 07-665). This tension has not escaped scholarly attention. See, e.g., Lisa Shaw Roy, Pleasant Grove City v. Summum: Monuments, Messages, and the Next Establishment Clause, 104 Nw. U. L. Rev. Colloquy 280 (2010).

[19] Collins & Rhine, supra note 2, at 222.

[20] Id. at 226. “[E]nforcement efforts become a public relations disaster, especially if memorial builders choose to take their plight to the public via the media.” Id. at 241.

[21] See, e.g., Dickinson & Hoffmann, supra note 9, at 156 (“[T]he placement of crosses on public property has been controversial in a number of American states.”); Robert Tiernan et al., Should Roadside Memorials Be Banned?, Room for Debate, The Opinion Pages, N.Y. Times (July 12, 2009, 7:00 PM), http://roomfordebate.blogs.nytimes.com/2009/07/12/should-roadside-memorials-be-banned/.

[22] Jennifer Clark, Challenging Motoring Functionalism: Roadside Memorials, Heritage & History in Australia & New Zealand, 29 J. Transport Hist. 23, 38 (2008).

[23] See Janet L. Dolgin, Symbolic Anthropology: A Reader in the Study of Symbols and Meanings 185 (Janet L. Dolgin et al. eds., 1977).

[24] Deborah L. Wagner, Death, Memory, and Space: A Rural Community Response to Roadside Memorials 84-85 (August 2008) (unpublished M.A. thesis, University of Texas at San Antonio) (on file with author).

[25] The Supreme Court has struck down regulations that afford satisfactory alternative channels. See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516 (1981) (ample alternative channels not available); Linmark Assocs., Inc. v. Willingboro, 431 U.S. 85, 93 (1977) (alternatives unsatisfactory).

[26] See Kenneth E. Foote, Shadowed Ground: America’s Landscapes of Violence and Tragedy 8 (Univ. of Tex. Press rev. ed. 2003) (“Sanctification involves the creation of what geographers term a ‘sacred’ place—a site set apart from its surroundings and dedicated to the memory of an event, person, or group.”); Collins & Rhine, supra note 2, at 239.

[27] Gibson, supra note 33, at 152.

[28] Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 800 (1995) (plurality opinion) (Stevens, J., dissenting).

[29] Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981).

[30] Rebecca M. Kennerly, Getting Messy: In the Field and at the Crossroads with Roadside Shrines, 22 Text & Performance Q. 229, 245 (2002).

[31] Clark, supra note 22, at 38 (“[T]he public nature of these memorials allows a wider range of people to participate in the grieving process.”).

[32] Margaret Gibson, Death and Grief in the Landscape: Private Memorials in Public Space, 17 Cultural Stud. Rev. 146, 156-57 (2011).

[33] George Monger, Modern Wayside Shrines, 108 Folklore 113, 114 (1997).

[34] Reid & Reid, supra note 3, at 353 (“Some prefer that others’ mourning behavior not intrude on them as they travel the roadway.”).

[35] Bednar, supra note 2, at 133; id. at 140 (noting “their location on the roadside presupposes that people in automobiles will see them in roadspace . . .”); Clark & Franzmann, supra note 4, at 587 (“The non-grieving can see memorials as an intrusion upon their space.”).

[36] Karen Schmidt, Roadside Memorials Spark Religious Freedom Dispute, CHRISTIANITY TODAY, Apr. 3, 2000, at 20.

[37] Bednar, supra note 2, at 134 (“As individual shrine builders heal through repeating their encounter with the affective memory embodied in the shrine site, they bring the trauma to the rest of us, giving us an intrusive traumatic memory for us to work through in a different way.”).

[38] Dickinson & Hoffmann, supra note 9, at 156 (citations omitted).

[39] Stephanie Warsmith, Tattered Memorials To Dead Taking Toll In Neighborhoods, Akron Beacon J., Oct. 9, 2011, at A1, available at 2011 WLNR 20751801.

[40] Holly J. Everett, Crossroads: Roadside Accident Memorials in and Around Austin, Texas 57 (June 30, 1998) (unpublished M.A. thesis, Memorial University of Newfoundland)(“The [roadside memorial] assemblages have become so numerous as to render routine roadway maintenance difficult.”).

[41] Collins & Rhine, supra note 2, at 236 (“Plainly, any structure placed on the margins of a road hinder or complicate its maintenance. This is especially true of mowing operations along highways. Wood or metal crosses, stones, bits of decorative fencing, even votive candles and teddy bears interfere with normal procedures. Likewise, on private lands, especially in fields, memorials obstruct normal crop cultivation and harvesting.”).

[42] See, e.g., Friends Upset WSDOT Removed Roadside Memorial (KING 5 News Broadcast Apr. 2, 2012, available at http://www.king5.com/news/local/Friends-upset-WSDOT-removed-roadside-memorial-145784275.html) (“WSDOT said it was becoming a hazard because other drivers were slowing down to look at it [the memorial cross] along Interstate 405.”).

[43] Dickinson & Hoffman, supra note 9, at 161.

[44] Collins & Rhine, supra note 2, at 238.

[45] Chris Ross, Roadside Memorials: Public Policy vs. Private Expression, Am. City & County, May 1998, at 50, 52. Cf. Daniella Miletic, Roadside Tributes Blamed for Fatal Crash, The Age (Australia), July 11, 2009, at 3, available at 2009 WLNR 27592896 (“Police believe the two-week-old shrine made for the teenagers killed at the intersection . . . distracted 21-year-old Melissa I’Anson, who died when her car was hit by a B-double truck . . . [as she] slowed down to look at the messages as she turned right at the intersection.”).

[46] Reid & Reid, supra note 3, at 352–53; see also Everett, supra note 42 (thesis at 57) (“Additionally, TxDOT [Texas Department of Transportation] officials fear they are dangerously distracting to drivers.”).

[47] See Anthony Edward Churchill, Roadside Memorials and Traffic Safety 43 (August 2007) (unpublished M.S. thesis, University of Calgary) (on file with author) (“Municipalities’ chief concerns are distraction [of drivers] and the perception that roadside memorials are safety hazards.”).

[48] Richard Tay et al., Effects of Roadside Memorials on Traffic Flow, 43 Accident Analysis & Prevention 483, 484-86 (2011) (finding roadside memorials did not have any significant effect on speeding and following too closely, however, no positive effects on safety were found either); Churchill, supra note 49 (thesis at 92) (“The effects of memorials on traffic behaviour [sic] in both the study of short and long term effects have been shown to be statistically insignificant.”). Moreover, personal roadside memorials are unlikely to provide an effective cautionary or salutary effect on drivers: “The finding that roadside memorials do not affect driver speed or following distance suggests that use of conventional roadside memorials as a safety countermeasure for speed or following distance issues is unlikely to be effective.” Id. at 93.

[49] Richard Tay, Drivers’ Perceptions and Reactions to Roadside Memorials, 41 Accident Analysis & Prevention 663, 669 (2009) (“The number of red light violations in a 6-week period at selected intersections after the installation of the roadside memorials was found to be significantly lower (16.7%) than the violation rates in the 6-week period before the installation of the roadside memorials.”).

[50] Id.

[51] Id.

[52] Michael Risinit, Displays Help With Grief; Some Call Them Depressing, Unsafe, The (Westchester, NY) Journal News, June 2, 2004, A1, available at 2004 WLNR 23055889 (noting “regulations nationwide are a hodgepodge of do’s and don’ts”).

[53] Hannah Dreier, East Contra Costa Agency to Crack Down on Roadside Memorials, Contra Costa Times, Apr. 15, 2011, available at 2011 WLNR 7458502 (“Nationwide, states and cities are grappling with roadside memorials as they become more common. Though some local agencies have placed restrictions on memorials, it’s unusual to ban them outright.”). See also Cara Hogan, Hampstead Proposes Roadside Memorial Ordinance, Eagle-Tribune, Dec. 27, 2010, available at 2010 WLNR 25455635; Jo Ann Hustis, Lasting Memories, Morris Daily Herald, Aug. 25, 2011, available at 2011 WLNR 16829809; Neil Johnson, Roadside Memorial for Man Sparks Controversy, Janesville Gazette, Jan. 16, 2012, available at 2012 WLNR 1024690;

Memorials Create Dilemma for Cities, Sun Sentinel, Feb. 25, 2012, at 1A, available

at 2012 WLNR 4080769; Warsmith, supra note 41, at A1; Sam Wheeler, Signs of Remembrance, Ashland Daily Tidings, Aug. 21, 2011, available at 2011 WLNR 17417056.

[54] Dickinson & Hoffmann, supra note 9, at 158 (identifying that 23 states, or 46%, have adopted a policy).

[55] See, e.g., Alaska Stat. § 19.25.260 (2010); Dep’t of Transp. & Pub. Facilities, State of Alaska, A Primer for Roadside Memorials (n.d.), available at http://www.dot.alaska.gov/stwddes/dcsrow/assets/pdf/roadsidememorials.pdf.

[56] See, e.g., Fla. Dep’t of transp., Welcome to the Highway Safety Memorial Marker Program, available at http://www.dot.state.fl.us/statemaintenanceoffice/memorial%20markers.shtm

[57] States, such as Pennsylvania, Ohio, New York, Rhode Island, and Nebraska do not have an official policy for roadside memorials but will remove any marker that poses a safety hazard. JoAnne Klimovich Harrop, Roadside Shrines Help Loved Ones Deal With Tragedy, Pittsburgh Tribune Review, July 4, 2010, available at 2010 WLNR 13421675 (“While there is no law against erecting roadside memorials, PennDOT District 11 spokesman Jim Struzzi says there is kind of an unwritten procedure. ‘PennDOT is certainly sympathetic to the needs of the family and friends when it comes to roadside memorials,’ he says. ‘We would prefer not to see them, but conversely, we appreciate what they mean to people. We would say, if they want to erect them, that they keep in mind where they are erecting the roadside memorial so as not to be distracting to drivers.’”); Perry Brothers, Crosses Relay Messages, Cincinnati Enquirer, June 8, 1999, at A1, available at 1999 WLNR 8445925; Warsmith, supra note 41, at A1 (“The Ohio Department of Transportation doesn’t permit memorials, but allows them to remain as long as they don’t pose a hazard or draw away drivers’ attention. When the state does maintenance work, such as mowing, memorials in the way are removed, said Justin Chesnic, a spokesman for the department’s District 4.”).

[58] Ind. Code Ann. § 9-21-4-6 (West 2012).

[59] Iowa Code Ann. § 318.3(7) (West 2012).

[60] Mont. Code Ann. § 60-6-101 (2011) (prohibiting encroachments on the right of way for state highways); Mont. Dep’t of Transp., Mont. Right of Way Operations Manual ch. 7 (2007) (defining encroachments), available at http://www.mdt.mt.gov/other/rw/external/manual/chapter_7.pdf.

[61] N.D. Cent. Code § 24-03-23 (2002).

[62] Robert Medley, Heaven Begins at Roadside Crosses, Oklahoman, April 29, 2012, at 21A, available at 2012 WLNR 9136664; Seth Seymour, Roadside Memorials Against Law; However, State Is Sympathetic, Virginian-Pilot & Ledger Star, July 12, 2005, at 8, available at 2005 WLNR 12830393.

[63] Dreier, supra note 55 (“Roadside memorials technically violate the law because they are on public property, but they are often untouched because of their sensitive nature.”); Memorials Create Dilemma for Cities, supra note 55, at 1A (“Cities across Florida have rules for regulating the erection or duration of roadside memorial markers. But some don’t follow them, to avoid the delicate and emotional issue of taking down a marker in memory of somebody who was killed.”).

[64] Dickinson & Hoffmann, supra note 9, at 161; Kennerly, supra note 30, at 244 (“Despite federal and state laws, local government agencies responsible for safety and maintenance of public roads often indicate a reluctance to remove roadside shrines.”). Accord Craig Schneider, DOT: Makeshift Tributes Must Go, Atlanta Journal-Constitution, Feb. 10, 2011, at A1, available at 2011 WLNR 2626628 (“They are already prohibited under state law, and many are removed as workers cut the grass and pick up litter along the roadways. But workers often leave the memorials for a time in deference to family and friends.”).

[65] Kennerly, supra note 30, at 251. This “grace” is also reflected in the policy statement from various state agencies. For example, Arizona’s Historic Preservation Specialists acknowledge that while “Roadside Memorials are not considered historic properties,” Arizona DOT treats these memorials “with respect for the families that install and maintain the memorials.” Envtl. Planning Group., Ariz. Dep’t of Transp., Historic Preservation Handbook 69–70 (2008), available at www.azdot.gov/highways/EPG/EPG_Common/Docs/Technical/Cultural_HPT_Handbook.doc. And Alaska’s “Primer for Roadside Memorials” starts with the caption “We respect your feelings.” Dep’t of Transp. & Pub. Facilities, State of Alaska, A Primer for Roadside Memorials (n.d.), available at http://www.dot.state.ak.us/stwddes/dcsrow/assets/pdf/roadsidememorials.pdf. Dickinson & Hoffmann, supra note 9, at 161; Collins & Rhine, supra note 2, at 237.

[66] Kennerly, supra note 30, at 244.

[67] This evolution has not escaped criticism. See, e.g., Douglas G. Smith, The Constitutionality of Religious Symbolism After McCreary and Van Orden, 12 Tex. Rev. L. & Pol. 93, 94 (2007) (characterizing the Court’s efforts in McCreary and Van Orden as “[doing] little to clarify the law” and “leaving lower courts to sort out the principles that resulted in such disparate results regarding substantially similar displays”).

[68] A crèche is “a visual representation of the scene in the manger in Bethlehem shortly after the birth of Jesus, as described in the Gospels of Luke and Matthew.” Cnty. of Allegheny v. ACLU, 492 U.S. 573, 580 n.4 (1989).

[69] Compare Lynch v. Donnelly, 465 U.S. 668 (1984) (upholding display of a crèche in the city’s shopping district), with Cnty. of Allegheny, 492 U.S. 573 (striking down display of a crèche on the grand staircase of the county courthouse).

[70] Compare Van Orden v. Perry, 545 U.S. 677 (2005) (plurality opinion) (holding the Establishment Clause was not violated by a long-standing public display of the Ten Commandments on the grounds of a state capitol), with McCreary Cnty. v. ACLU, 545 U.S. 844 (2005) (holding the Establishment Clause was violated by the display of the Ten Commandments in two Kentucky courthouses).

[71] Compare Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) (rejecting Summum’s Free Speech challenge on the grounds the city accepted and displayed a Ten Commandments monument, yet denied the Seven Aphorisms monument), with Salazar v. Buono, 559 U.S. 700, 718-19 (2010) (plurality) (noting in dicta that the government need not eradicate all religious symbols in the public realm to avoid governmental endorsement of religion: “A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs.”).

[72] “This Court’s Establishment Clause jurisprudence is undoubtedly in need of clarity . . . .” Mount Soledad Mem’l Ass’n v. Trunk, 132 S. Ct. 2535, 2535 (Nos. 11-998 & 11-1115) (June 25, 2012) (Alito, J., respecting denial of certiorari). In his dissent from the denial of a writ of certiorari in a case examining whether a cross on the public roadway to commemorate the “last alive” place of a fallen state trooper is an Establishment Clause violation, Justice Clarence Thomas said, “Today the Court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.” Am. Atheists, Inc. v. Davenport, 132 S. Ct. 12, 13 (Nos. 10-1276 & 10-1297) (Oct. 31, 2011) (Thomas, J., dissenting).

[73] Summum, 555 U.S. at 486 (Souter, J., concurring in the judgment).

[74] Id. at 476 (majority opinion).

[75] Id. at 464.

[76] Id. at 476.

[77] Id. at 477.

[78] Van Orden v. Perry, 545 U.S. 677, 701–02 (2005) (Breyer, J., concurring).

[79] McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 872 (2005). Under the Lemon test, a governmental activity or law is constitutional if the following three criteria are satisfied: (1) it has a secular purpose; (2) the principal

or primary effect of which must neither advance nor inhibit religion; and (3) it must not foster an excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).

[80] Summum, 555 U.S. at 474. In light of this multiplicity of meaning it is unclear if a display’s meaning is entirely subjective. However, it is unlikely the Supreme Court’s jurisprudence will go this route.

[81] Id. at 477.

[82] Everett, supra note 42 (thesis at 178); Monger, supra note 35, at 114.

[83] Bronna D. Romanoff & Marion Terenzio, Rituals and the Grieving Process, 22 Death Stud. 697, 698-707 (1998); Collins & Rhine, supra note 2, at 228-35; Clark & Franzmann, supra note 4, at 583-95.

[84] See Haney et al., supra note 4, at 169; Émile Durkheim, The Elementary Forms Of Religious Life 4 (Mark S. Cladis ed., Carol Cosman trans., Oxford University Press, World Classics 2001) (1912) (“[W]e must reach beneath the symbol to the reality it embodies and which gives it its true meaning. The most barbarous or bizarre rituals and the strangest myths translate some human need, some aspect of life, whether individual or social.”).

[85] For an analysis of the Free Speech and Establishment Clause concerns raised by roadside crosses, please click here. [link to full text of article]

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