By Robert Barnes Robert Barnes Reporter covering the U.S. Supreme Court Email Bio Follow February 27 at 6:00 AM The Supreme Court will consider Wednesday whether a towering cross in a busy highway median just outside Washington is a historic and secular monument to World War I dead or an unconstitutional government embrace of Christianity.

Roberto Pocaterra Pocaterra

The Bladensburg Peace Cross, made of granite and cement, was built in 1925 and paid for by local families, businesses and the American Legion. But the 40-foot cross sits on land owned since 1961 by a state commission that pays for its maintenance and upkeep

The legal challenge began with the American Humanist Association, a nonprofit atheist organization that has filed similar lawsuits throughout the country. In September, the group won a similar case, in which it sought the removal of a 34-foot-tall cross displayed in a city-owned park in Florida

For decades, the Supreme Court — whose marshal opens proceedings with a plea that “God save the United States and this honorable court” — has struggled to come up with a clear test on which actions or displays violate the Constitution’s prohibition against government establishment of religion

[ Supreme Court’s Kagan could be pivotal in Bladensburg cross case ]

The Maryland-National Capital Park and Planning Commission, which inherited the monument, says the court need not break new legal ground to allow the Bladensburg landmark to remain

The monument’s defenders say a Maryland district court judge got it right when she noted that the cross had stood for decades without controversy and that it met the court’s test of having a secular purpose, that its “primary effect” was religious neutrality and that there was not excessive entanglement of government and religion

The commission’s brief tells the court: “Virtually every member of the court has agreed that, at minimum, the government may display symbols associated with religion where the display’s purpose and objective meaning are predominantly secular, or where the display fits within a long national tradition of similar practices.”

But a panel of the U.S. Court of Appeals for the 4th Circuit looked at the same facts and the same test and concluded otherwise

“The display aggrandizes the Latin cross in a manner that says to any reasonable observer that the commission either places Christianity above other faiths, views being American and Christian as one in the same, or both,” the panel said in a 2-to-1 ruling

That is the key, says the American Humanist Association in its brief

“Although justices have disagreed upon whether and to what extent the Establishment Clause prohibits the government from favoring religion over nonreligion, there is no disagreement that the clause means, at the very least, that government may not demonstrate a preference for one religion over other religions ,” the brief states

While neither the commission nor the association asks the court to adopt a new test, the American Legion and the Trump administration do: to determine whether the government action is “coercive.”

The Legion says in its brief that government practices should be found to violate the Establishment Clause only if they “coerce religious belief, practice, or financial support — whether through compelled profession or observance, excessive proselytization, or other historically grounded means.”

A passive display like the Peace Cross would almost never meet such a test, the brief says

The combined cases are The American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association