BOSTON – A case challenging the words “under God” in the Pledge of Allegiance is being weighed by the Supreme Judicial Court of Massachusetts where state law requires schoolchildren to recite the pledge daily as a patriotic exercise.
The case before the court stems from a lawsuit filed in 2010 by the American Humanist Association on behalf of atheist parents of schoolchildren in the Acton-Boxborough School District.
Attorneys for the humanist plaintiffs avoided claiming that the pledge represents a state establishment of religion, as most of the pledge cases have in the past. Instead, attorneys argued in Doe v. Acton-Boxborough Regional School District that reciting the pledge, which requires atheists to say the words “under God,” is discriminatory and violates the state’s equal protection laws.
A state Superior Court judge ruled in 2012 that the words “under God” did not violate the law, but reflected a political philosophy evident in the history of the pledge and state law itself. The judge also stated reciting the pledge is not a religious exercise.
But David Niose, attorney for the atheist families, argued before the Supreme Judicial Court Sept. 4 that the case “presents a classic equal protection situation where an unpopular and wrongly vilified minority faces obvious official discrimination.”
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“The trial court failed to apply strict scrutiny despite constitutional and statutory enumeration requiring it,” Niose told the court. “[The pledge] affirms very unambiguously that the nation is ‘one nation, under God.’ Had the ‘under God’ words not been in there, it would have been ‘one nation, indivisible.’ But by inserting ‘under God’ language into the pledge, we have a pledge where children every morning are pledging their national unity and loyalty in an indoctrination format which validates religious, God-belief as truly patriotic.”
The phrase “under God” creates two classifications of citizens, Niose argued, because it “actually invalidates atheism, as second-class citizenry at best and downright unpatriotic at worst.” Therefore, Niose said, the practice violates the state’s equal protection and anti-discrimination laws.
Niose’s equal protection and discrimination claims make the pledge case one of the first of its kind in the nation. But it is a strategy familiar to many activists in the state.
The use of equal protection as a legal strategy for social change is the same strategy attorneys used in the 2003 landmark same-sex marriage case before the Supreme Judicial Court. In its ruling in that case, issued in 2004, the court said laws prohibiting same-sex marriage are “incompatible with the constitutional principles of respect for individual autonomy and equality under law.”
The prospect that the court may follow a similar pattern with this case is not lost on groups like the Becket Fund for Religious Liberty. Eric Rassback, deputy general counsel for the group, told Religion News Service (RNS) a ruling striking the words “under God” would result in similar challenges in other courts.
“You would then see a rash of state court lawsuits challenging the pledge all over the country … a win for us would completely avoid that unnecessary harm. And it would affirm that it is not discriminatory to have the words ‘under God’ in the pledge,” Rassback told RNS.
The Becket Fund for Religious Liberty filed a friend of the court brief on behalf of the school district in the case. The American Center for Law and Justice, American Legion, Massachusetts Family Institute and Alliance Defending Freedom also filed briefs in favor of retaining the phrase “under God” in the Pledge of Allegiance in Massachusetts schools.
Should the court rule in favor of the school district, the decision may be appealed to the U.S. Supreme Court, though the challenge to the law likely would be met as others that addressed the words “under God” in the pledge since the phrase was added in 1954. In 2004 the Supreme Court ruled the requirement to say the pledge in schools was not a violation of separation of church and state.
Geoffrey Bok, attorney for the Acton-Boxborough district, argued before the Supreme Judicial Court that the case is not about equal protection or discrimination, but about parents seeking to tailor public education to their values.
Bok cited a unanimous ruling of the state’s high court in 1995 that “parents have no right to tailor public school programs to meet their individual religious and moral preferences.”
Bok also said the case should have been raised as an establishment of religion case, as it was in a similar case in New Hampshire in 2012. In that case, a U.S. Court of Appeals for the First Circuit ruled that the state’s law requiring the recitation of the Pledge of Allegiance daily in school did not violate the Constitution’s First Amendment establishment clause or the Fourteenth Amendment’s equal protection or due process clauses.
Though primarily not an equal protection case, the federal court ruled that schools are not required by the Constitution to shield students from religious ideas and viewpoints they may personally find offensive. The appeals court also ruled that the recitation of the pledge was voluntary and not a religious exercise. The Supreme Court later declined to hear an appeal in the New Hampshire case.
Bok also told the Supreme Judicial Court the phrase “under God” is representative of the United States’ underlying political philosophy, echoing the earlier court ruling from 2012. Even though the U.S. Constitution makes no reference to God, Bok said, the Massachusetts constitution does mention God, the Supreme Being, and rights that come from “something higher.”
“It is not a prayer. It is not an affirmation. It is not an invocation,” Bok told the court. “It is a statement of our political philosophy on which our country was founded, that our rights did not come from the king, or the czar or the queen. They come from something higher. They are innate.
“It is the argument upon which slavery was abolished. We believe all men have these rights,” Bok said. “It is the longstanding political philosophy espoused by Abraham Lincoln in the Gettysburg Address. It is the political philosophy confirmed in our Declaration of Independence.”
The Supreme Judicial Court issued no timeline for its ruling on Doe v. Acton-Boxborough Regional School District. The Sept. 4 oral arguments before the Massachusetts Supreme Judicial Court may be viewed online here.
(EDITOR’S NOTE – Gregory Tomlin is a writer based in Fort Worth, Texas.)