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...