Private roadside memorials are part of a growing trend among the bereaved who seek to “make sense of senseless deaths” along the public roadways.2 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.3 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.

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.13 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.” This Article joins the legal scholarship exploring “mixed speech,” which is neither purely private speech nor purely government speech.

This Article canvasses the interdisciplinary literature devoted to the roadside memorial phenomenon and then examines the Free 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.16 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.17 However, private religious speech may lose its “purely private” nature by its placement in a public space.18 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 the risk of appearing to tacitly adopt the religious message.19 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.”20 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.”21 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. Constitutionally permissible avenues for policymakers to address roadside memorials are discussed in Part V. Governments that create a limited public forum for the bereaved to express the two-fold message of remembrance of the deceased and caution to other drivers may satisfy the Free Speech interests of the memorial makers. Additionally, Establishment Clause concerns about government endorsement of religion may be forestalled if the government consistently applies viewpoint-neutral criteria for speakers and topics and also disclaims control or endorsement of the message.