Are roadside memorials justified on public property?

My wife, Laurel, is just as much a fervent scientifically-minded secular activist as I am. A few days ago she wrote a letter to a city official here in Salem, Oregon about religiously-themed roadside memorials on public property.

Roadside memorial in Georgia

What she said makes a lot of sense.

Sure, the desire of relatives and friends to put up a cross, flowers, and such at the place a loved one was killed in a traffic accident is understandable. But not all intuitive impulses deserve to be allowed as lawful acts, especially when they appear to go against the grain of the U.S. Constitution.

Here's Laurel's letter, with her brief introduction:

I drive by a roadside memorial of a cross everyday and have long been bothered by these memorials which the City of Salem allows to remain indefinitely on the public right-of-way. Emboldened by reading the FFRF [Freedom from Religion Foundation] newsletter, I am sending the letter below to the Salem Public Works Director. I spent all evening researching the issue to devise the letter. 

Here it is:
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RE: Religious Roadside Memorials            January 21, 2016

Dear Mr. Fernandez,

I recently called to ask why religious roadside memorials are allowed to stay up indefinitely, often for many years, on the public right-of-way in the City of Salem. I spoke to Kevin Hottman, and later your own assistant, and was told that the City allows such memorials unless they become a hazard or become unsightly and unmaintained.

I have explored this issue and am providing some articles and information easily obtained from a Google search about the legality issues of such memorials, especially when they have religious symbols.

As I am sure you are aware, the U. S. Constitution supports a separation of church and state. While religious symbols are supported by free speech on private property, when a public governmental organization allows them to exist on public property, like a street right-of-way, it can be construed as governmental support of a specific religion.

Though courts have yet to provide clear guidance on the constitutionality of erecting and allowing private memorials on public spaces, there have been increasing numbers of legal challenges regarding such memorials, which have resulted in many states, including Oregon, to not allow such memorials on State highways.

Private religious speech in a designated or traditional public forum is generally free from the Establishment Clause, which prohibits government endorsement of a religion. However, private religious speech may lose its purely private nature by its placement in a public space like a city road right-of-way. By not removing the private religious displays, a government may risk appearing to tacitly adopt the religious message.

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 they desire.

But regardless of the religious aspect of crosses in the memorials, the real issue is that no one private person or family has the right to use public land for his or her own purposes. If I were to decide to erect a memorial to Michael Jackson, a giant ceramic dog statue (which I might like), or a symbol of devotion to the Flying Spaghetti Monster on Kuebler Road or Commercial Street right-of-ways, would I be allowed to do that?

The roadside memorials are eyesores to the vast majority of the public who do not know the deceased, but possibly may even be traumatic for some, due to being a traumatic reminder of witnessing the accident, or of some other accident or death of a loved one every day as they drive by. I doubt there is any evidence that the memorials increase safety by reminding people about the need to drive safely. They are more likely to distract a driver who glances over at the memorial out of curiosity.

The real issue and problem is the location of the memorials, not just the content. People should not be able to put anything they want on public property and leave it there.

The City of Salem is already violating their policies about advertisement signs private people or businesses place on public property. There have been numerous complaints about this issue, with the mayor and others just saying the city lacks funds to deal with the problem effectively.

I urge the City of Salem to adopt a policy about roadside memorials. At the very least, the religious symbols should not be allowed, but the memorials themselves are unnecessary and should not be allowed. People can grieve their loved ones at cemeteries or in other private place of their choosing. Our streets and roads belong to us all; we pay taxes for their maintenance and they are not cemeteries for private memorials.

I would like to know what the City of Salem is going to do about this situation. If nothing is done, and there is to be no action on this issue, my next step will be to contact the Freedom From Religion Foundation, which I am a member of, to see if they will become involved in our local matter.

Sincerely,

Laurel Hines

Comments

[alfred e newman]

Who gives a rip about some person being killed on the road. Are we to take off our hats or say a prayer. Maybe we can erect a memorial in front of hospitals and nursing homes would be appropriate for the dearly departed.