WASHINGTON (CN) — Weather-worn and blackened from more than 90 years in the elements, the Bladensburg Peace Cross sits in the middle of a busy three-way interchange just across the Maryland border with Washington, D.C., as a memorial to local soldiers who died in World War I.
At the center of the cross is a circular bronze inlay featuring a five-pointed star with "U.S." stamped in the middle and on its base are the words "valor," "endurance," "courage," and "devotion." An off-white tarp is fastened across its peak, which rises 40 feet above the steady parade of cars that pass, an American flag its only rival in the small park on the median.
Most cars stream by, stopping only to obey the traffic signals that control the intersection. But on Wednesday, the gray and red concrete cross will be at the center of the debate over how courts evaluate when the government's use of religious symbols treads on the First Amendment.
The Bladensburg cross was dedicated in 1925, after the American Legion took over construction when the fundraising efforts of a group of mothers who lost children in the Great War fell short.
At the time of its construction, the Celtic-style Latin cross sat at the end of the National Defense Highway and other monuments eventually went up around it. As roads built up in the area, the cross was swallowed up in the complex interchange and now stands alone on the median, separated by asphalt from other monuments in the area.
In part citing safety concerns from having the large cross in the middle of a busy intersection, the Maryland-National Capital Park and Planning Commission took over the land on which the cross sits in 1961. The American Legion reserved the ability to conduct veterans’ events there, which it does on Veterans Day and Memorial Day.
The cross remained unchallenged until 2014, when the American Humanist Association filed a federal lawsuit saying the cross was an unconstitutional government endorsement of religion. The original suit was against the Maryland-National Capital Park and Planning Commission, but the American Legion intervened as a defendant seeking to preserve the cross.
The federal court ruled against the American Humanist Association, but the Fourth Circuit reversed, saying that because of the cross’s inextricable ties to Christianity, the monument had the effect of endorsing religion.
Now before the Supreme Court, the question is not really about whether the cross will stay standing, but what the justices say about how lower courts should evaluate establishment clause disputes.
"In all likelihood, this cross is going to be standing once this case is over," Jeffrey Shulman, a constitutional law professor at Georgetown University, said in an interview. "The real interest in this case is what test, what Establishment Clause test, the court will choose to use."
Richard Garnett, a professor at Notre Dame Law School and founder of the school's Program on Church, State and Society, said the state of legal tests for Establishment Clause cases is something of a mess, with courts applying various tests inconsistently.
"We just really don't know what is the right question to ask when it comes to these symbols and displays," Garnett said. "Whether they're memorial crosses or Christmas holiday decorations or high school holiday pageants, courts just don't really know what to ask. So I think a lot of us are hoping one of the things that will come out of this case is some kind of clarification and tidying up what exactly is the rule for these kinds of disputes."
Perhaps the most well-known Establishment Clause test is the Lemon test, a three-part inquiry that asks whether a government action has a clear secular purpose, what the effects of the action are, and whether it would improperly entangle government in religion.