BLADENSBURG, Md. -- The war memorial has seen better days. Sitting in a traffic circle in the Washington suburbs, the Bladensburg Peace Cross as it is known has large cracks in its tan concrete and pink granite. Water damage has stained the 40-foot structure, covered partially by a tarp to prevent more decay.
But this worn-down, century-old monument is now at the center of a fiery Supreme Court fight – one where the newest justice, Brett Kavanaugh, once again could play a decisive role.
The memorial’s supporters say the structure was erected solely to honor those who died during World War I – and, despite its shape, is secular in nature. Opponents call it an impermissible overlap of church and state, since the Latin cross design sits on public land.
"There is an unfairness of suggesting that a cross could represent all veterans when clearly not all veterans are Christians," said Roy Speckhardt, executive director of the American Humanist Association, which opposes the cross on public land.
Justices on Wednesday will hold 70 minutes of oral arguments and hear from both sides over an issue that has divided the courts and the public for decades. It presents another opportunity for consistent, clear markers to be created on when such "passive" religious displays and speech, if ever, can occur in the public arena.
Hundreds of similar cross-shaped war memorials across the country, as well as other religious displays, could be affected. Those include permanent Ten Commandments monuments and seasonal Nativity scenes in local parks.
The Baptist Joint Committee for Religious Liberty and the American Jewish Committee are among those backing the memorial's removal. But 109 members of Congress and 28 states are among those filing briefs in support of the veterans.
“The Supreme Court should honor the way Gold-Star mothers chose to remember the service and sacrifice of their sons who died defending our freedom,” said Kelly Shackelford, president of First Liberty Institute, which is leading the legal fight to preserve the cross. “If this gravestone is bulldozed to the ground, it’s only a matter of time before the wrecking ball turns on Arlington National Cemetery and the hundreds of memorials like this one across the country.”
The Trump administration also will be given argument time before the justices to make its case for the memorial.
Honoring the Fallen
Fundraising for the Peace Cross began soon after the "war to end all wars" concluded. Spearheaded by Gold Star mothers of Prince George's County, Md., who lost their sons to battle, it honors 49 men, including four African-American soldiers and a Medal of Honor recipient. It was completed in 1925, built by members of local American Legion posts with private donations. It was later rededicated as a memorial to honor all American veterans.
Inscribed at the base of the monument are four words: Valor, Endurance, Courage and Devotion. There are no written references to God, Christianity or religion.
Complicating matters, however, a Maryland parks commission in 1961 gained control of the cross and land around the busy intersection. The government now pays for maintenance and upkeep, though veterans groups regularly hold memorial services there. The structure includes the embedded symbol of the American Legion.
Among the names listed is Pvt. Thomas Notley Fenwick, who died of pneumonia in 1918 after being gassed while on the French front. His niece Mary Ann Fenwick Laquay grew up hearing stories about her uncle and regularly visits the memorial.
"I know he's not buried there but I feel like he is, it's like going to the cemetery," the 80-year-old said. "It needs to stay right where it is. It's not hurting anybody ... Why are [those opposed] so determined to destroy something that means so much to so many people?"
Similar cross displays on federal land to honor war dead can be found at nearby Arlington National Cemetery. A simple cross dedicated to World War I veterans was located for decades in California's Mojave National Preserve but was transferred in 2012 to private hands in a land swap, with the Supreme Court's blessing.
In Bladensburg, three area residents and the American Humanist Association filed suit in 2014, saying in court papers the memorial sends a "callous message to non-Christians."
"I think it was intended to be a Christian symbol from the beginning," Speckhardt, the group’s executive director, told Fox News. "Unfortunately the cross can't be a symbol for all. It doesn't represent our veterans who've served honorably who are Muslim, Buddhist, and Jewish. And of course those of no faith at all."
AHA and other groups point out the original contributors to the memorial signed a pledge, stating, "With our motto, ‘One God, one Country and one Flag,’ we contribute to this memorial cross commemorating the memory of those who have not died in vain."
The association has suggested the memorial either be moved to private property or redesigned.
A divided federal appeals court in 2017 agreed, ruling the Bladensburg memorial cross was a "core symbol of Christianity” and concluded, "the purported war memorial breaches the wall of separation between Church and State."
"The sectarian elements easily overwhelm the secular ones," Judge Stephanie Thacker wrote for the 2-1 majority.
In lower court arguments, one judge said the dispute could be resolved by replacing the memorial. Another suggested stripping the horizontal arms from the cross, something its supporters liken to desecration.
The Supreme Court has a mixed record on disputes concerning religious freedom and the separation of church and state, with the justices often using a case-by-case determination.
The high court has allowed some religious-themed displays on public property, while banning others. In 1971, the court established its three-prong "Lemon" test, named for one of the parties in the case, for the relationship between church and state.
'We can't back down, we have got to win this.'
Under those standards, the government can assist a religious interest only if the primary purpose of the assistance is secular, the assistance neither promotes nor inhibits religion, and there is no excessive entanglement between church and state.
But the approach has had its critics. The late Justice Antonin Scalia in 1993 tweaked his colleagues for their "wavering" application of precedent.
"Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again," he wrote. "It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will."
Justice Clarence Thomas was more succinct in 2011, saying the court's jurisprudence on the matter was "anyone's guess."
Yet a court majority in recent years has sought a more nuanced position, recognizing perhaps how divisive the issue has become. In his narrowly drawn 2018 majority opinion, just weeks before announcing his retirement, Justice Anthony Kennedy was in the 7-2 majority favoring a Colorado baker who refused to create a customized cake for a gay couple's union, claiming a sincere faith-based exemption to the state's anti-discrimination law.
With Kennedy now replaced by Kavanaugh on the court, some observers believe the 5-4 conservative majority will be more sympathetic to religious liberty claims. And Kavanaugh could prove the decisive vote in the current fight, where history and context of the Bladensburg memorial are sure to be presented at argument.
‘We can't back down’
The American Legion's Colmar Manor Post 131 is less than a mile from the Bladensburg Peace Cross. Nearby are other smaller monuments to those lost from other American conflicts and the 9/11 terror attacks. The group sponsors the annual Memorial Day ceremony of remembrance on the site and is one of the case litigants.
On a recent Friday, three local Vietnam-era veterans gathered to talk about their service, and support for the Peace Cross.
"The 49 men over there, we don't know what religion they are," said Stan Shaw. "Because the military never asked them that, when they were over there fighting."
"When I came of age, 13 years old, my father took me by the Peace Cross, and said, 'Son, this is what the people of this county think of military service,'" said Mike Moore. "Having that memorial torn down, defaced, or bulldozed, I can't conceive of it. It would be an insult to all those who served."
"We can't back down, we have got to win this," added Phillip Holdcraft. "We can't desecrate all these memorials across the United States. They're not for Christians, they're for the veterans."
But some Jewish and Muslim veterans groups are among those opposing the memorial's design, saying it is not inclusive or respectful of their faiths.
"Veterans of all stripes are united by their love of country, but they are not united by the cross," the Jewish War Veterans of the United States of America, Inc., told the high court in a brief. "It does a disservice to both Jewish veterans and Christian veterans to suggest otherwise."
A ruling is expected by late June.
Fox News’ Caleb Parke contributed to this report.