Murman, 092221 NDAGO, AGO 21-015

Case DateSeptember 22, 2021
CourtNebraska
Senator Dave Murman
AGO 21-015
No. 21-015
Nebraska Attorney General Opinion
State of Nebraska office of the Attorney General
September 22, 2021
         SUBJECT: Constitutionality of LB 670 - Authorization of Roadway Memorial Signs          REQUE STED BY: Senator Dave Murman Nebraska Legislature          WRITTEN BY: Douglas J. Peterson, Attorney General, James A. Campbell, Solicitor General          INTRODUCTION          On March 2, 2021, you requested our opinion on the constitutionality of LB 670. That bill authorizes relatives of individuals killed on Nebraska roadways to apply to the Nebraska Department of Transportation (the Department) for roadway memorial signs commemorating their lost loved ones. Those signs display a safety message and a commemorative message about the deceased, including, at the request of the relative, an emblem of belief.          Your request includes two specific questions. First, you ask whether "the provision allowing a qualified relative the option to request ... an emblem of belief ... violate[s] the Establishment Clause of the First Amendment to the U.S. Constitution." We conclude that it does not. Second, you ask whether the Department would violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution if it denies a requested emblem of belief based on the criteria in LB 670. We likewise determine that it would not.          ANALYSIS          LB 670 authorizes the placement of memorial signs on Nebraska roadways "to raise public awareness about highway safety and the dangers of impaired driving and to afford families an opportunity to memorialize family victims." LB 670, § 4(1). Any "qualified relative" of a person killed on the roadways may request one of these memorial signs. Id. They do so by filling out a Department-created form and paying "a fee of seventy-five dollars." Id.          The signs are "erected by or at the direction of the Department. . . and maintained within the right-of-way at appropriate distances from roadways of the state primary system, but not within any municipality," and they are placed "as close to the location requested by a qualified relative as practicable." LB 670, § 5(1). Each sign will contain two messages: (1) "a safety message"; and (2) a message "memorializing] and commemorat[ing] the deceased." Id. at § 5(2)(a). For the safety message, each sign will "[c]ontain one of the following messages: 'Please Drive Safely'; 'Seat Belts Save Lives'; 'Don't Drink and Drive'; 'Don't Text and Drive'; or 'Don't Drive Impaired.'" Id. at § 5(2)(d). And for the commemorative message, each sign will "[c]ontain the words 'In Memory of and the name ... of the deceased" and "an emblem of belief" if requested by "the qualified relative." Id. at § 5(2)(c).          An emblem of belief is "an emblem that represents the decedent's religious affiliation or sincerely held religious belief system, or a sincerely held belief system that was functionally equivalent to a religious belief system in the life of the decedent." LB 670, § 5(2)(c). "In the absence of evidence to the contrary, the department will accept as genuine an applicant's statement regarding the sincerity of the religious or functionally equivalent belief system of a deceased eligible individual." Id. Although the "religion or belief system represented by an emblem need not be associated with or endorsed by a church, group, or organized denomination," the emblem cannot be a "social, cultural, ethnic, civic, fraternal, trade, commercial, political, professional, or military emblem[]." Id. Nor will the Department "accept any emblem that would have an adverse impact on the dignity and solemnity of the sign honoring the deceased person, including, but not limited to, emblems that contain explicit or graphic depictions or descriptions of sexual organs or sexual activities that are shocking, titillating, or pandering in nature and emblems that display coarse or abusive language or images." Id. All the requirements outlined in this paragraph mirror the requirements prescribed in a U.S. Department of Veterans Affairs' regulation defining the emblems of belief that may be placed on government-issued cemetery headstones or markers. See 38 C.F.R. § 38.632(b)(2). If the State "determines that [a] proposed emblem does not meet the criteria," it will allow the applicant to either omit "the part of the emblem that is problematic," if feasible, or choose "a different emblem." LB 670, § 5(2)(c).          An emblem of belief included on the list that the Department of Veterans Affairs has approved for government-issued headstones and markers "is presumed to meet the criteria" established in LB 670. LB 670, § 5(2)(c) (as amended). That list currently contains over 75 different emblems. See Available Emblems of Belief for Placement on Government Headstones and Markers, U.S. Dep't of Veterans Affairs, https://www.cem.va.gov/cem/hmm/emblems.asp. Among them are Judaism's Star of David, the Buddhist Wheel of Righteousness, the Muslim Crescent and Star, Hindu imagery, and various emblems (such as Latin crosses) associated with different Christian denominations. Id. Also included are the Atheist symbol, the American Humanist Association's emblem, the Wiccan Pentacle, the Hammer of Thor, a Landing Eagle, a Sandhill Crane, and Druid imagery. Id.          Each memorial sign will be "blue with white lettering" that is "legible from the roadway." LB 670, § 5(2)(b). It will be "posted for five years," after which, if the relative does not file another application asking for the sign to remain "for an additional five years," "the sign shall be removed." Id. at § 5(2)(e). When the sign is removed, the relative has "the option of retaining the sign before the department discards or recycles it." Id.          For the reasons explained below, LB 670's authorization of these signs does not violate the Constitution.          1. The option to request an emblem of belief does not violate the Establishment Clause of the U.S. Constitution.          The Establishment Clause of the U.S. Constitution states that "Congress shall make no law respecting an establishment of religion." U.S. Const, amend. I. While the text applies this prohibition only against Congress, the U.S. Supreme Court has long held that the Establishment Clause also restricts state governments. Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 8 (1947).          Allowing relatives to select an emblem of belief for their loved ones' memorial sign poses no Establishment Clause problem for two reasons. First, the Establishment Clause does not apply to the speech of a private individual, and a court would likely conclude that the emblem of belief on a memorial sign is the speech of the honored individual and her family instead of the government. Second, even if the emblem of belief is the government's speech, allowing relatives to select one does not violate the Establishment Clause because it is consistent with our national tradition of recognizing religion's importance in the lives of many Americans and does not impermissibly endorse religion.          A. The Establishment Clause does not apply because the emblem of belief is the expression of the honored individual and her family rather than the government.          The Establishment Clause applies only to government speech—not the expression of private individuals. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 468 (2009) ("[G]overnment speech must comport with the Establishment Clause."); Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 767 (1995) (plurality opinion) ("By its terms [the Establishment] Clause applies only to the words and acts of government.") (emphasis in original)). As the U.S. Supreme Court has explained, "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." Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (quoting Board of Ed. of Westside Community Schools (Dist.66) v. Mergens, 496 U.S. 226, 250 (1990) (opinion of J. O'Connor) (emphasis in original)).          Here, the emblem of belief on each...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT