The Massachusetts Supreme Court heard arguments Wednesday in a case that examines whether the “under God” clause in the Pledge of Allegiance makes the state’s daily recitation of the Pledge in schools discriminatory.
This isn’t the first time the clause has come before a judge, though plaintiffs in this case are basing their arguments in equal protection guarantees – which are particularly strong under Massachusetts’s Equal Rights Amendment – rather than the First Amendment.
“It’s a different approach,” says David Niose, the attorney for the plaintiffs and president of the Secular Coalition for America. “We have constitutional protections demanding equality. The state statute that requires daily recitation – sponsored by school, led by teacher – of the Pledge of Allegiance, obviously discriminates against atheist and humanist children. On a daily basis, you’re having patriotism defined and having children indoctrinated in way that exalts one religious group and marginalizes atheists and humanists.”
In the past, most challenges to the “under God” clause in the Pledge have been unsuccessful. The notable exception was in 2002, when the US Ninth Circuit Court of Appeals ruled that, in fact, the words are an endorsement of religion and violate the Establishment Clause of the First Amendment – a ruling that created a small political storm at the time. That ruling was reversed, however, when the US Supreme Court held that the plaintiff (a noncustodial parent) didn’t have standing to bring the suit. When a new suit was filed and reached that same Ninth Circuit eight years later, the court ruled that, in fact, the phrase is a historical reflection of beliefs that doesn’t constitute an endorsement of religion.
Atheists unhappy with the phrase in the Pledge have long pointed out that, in fact, that phrase doesn’t have many historical roots: The original Pledge – written in 1892 and adopted by Congress as a national pledge in 1942 – didn’t contain the words “under God.” The phrase was added in 1954 during the McCarthy Era.
The language may well be controversial, but that doesn’t make it discriminatory – something that should have to pass a much higher bar, says Eric Rassbach of the Becket Fund for Religious Liberty, one of two defense attorneys in the case.
“At some point, the government has to be able to speak,” Mr. Rassbach says. “Someone is always going to object to something the government is saying.” The answer to that in a case like this, he says, is to allow people to opt out – no one has to say the Pledge – but not to get rid of the Pledge entirely. “It doesn’t mean they get to decide what the rule is for everybody else. Then it turns into minority rule, instead of majority rule.”
Jehovah’s Witnesses, who believe the Pledge constitutes idolatry, have been sitting out the Pledge for a very long time, notes Rassbach. They won the right from the Supreme Court in 1943, when the court ruled that “compulsory unification of opinion” is unconstitutional.
“That’s the way we typically solve these kinds of conflicts. We can’t have a kind of heckler’s veto applied to government speech, which is what this is,” says Rassbach.
For his part, Mr. Niose says simply allowing children to opt out of the Pledge doesn’t make it any less discriminatory.
“The state is sponsoring and teachers are leading an exercise every day that exalts one group and disassociates the other group from patriotism,” says Niose. “It’s hardly a consolation that the other group has the option of watching.”
The case before the Supreme Court is an appeal of a lower court ruling last year, in which a Massachusetts judge found that the phrase in the Pledge did not violate the state's equal protection guarantees. The judge ruled that including the phrase "under God" in a voluntary statement of patriotism does not "convert the exercise into a prayer." The plaintiffs – the American Humanist Association and a family that has remained anonymous – appealed the ruling.
If the plaintiffs are successful, Niose expects that there may be similar cases in other states with strong equal protection statutes. But he also says he hopes it will spark a broader conversation.
Not one member of Congress is publicly an atheist, he notes.
“Barney Frank just retired. He came out as gay 30 years ago, but didn’t come out as an atheist until after he left office,” says Niose. “We need to have a conversation in this country about how atheists are viewed and treated.”
The case is Doe v. Acton-Boxborough Regional School District.