***Update***: I’ve updated this post with some arguments as to why the “discrimination route” might have a chance.
When Michael Newdow sued to remove “Under God” from the Pledge of Allegiance a decade ago, he argued that it violated the Establishment Clause of the First Amendment. It was a promotion of religion in the classroom. The case eventually went to the Supreme Court, where the justices dismissed the case, saying Newdow didn’t have standing to bring the case.
Judge Jane Heggarty heard arguments on Monday in the case of an Action family who has filed suit against the Acton-Boxborough School District to take the words “under God” out of the Pledge of Allegiance.
The Plaintiffs are named as Jane and John Doe out of concern for what they call “public hostility.” Their children are listed as ages 13, 11, and 9.
Interestingly, the Does do not base their legal claim (as others before them have tried) on the First Amendment’s prohibition on state establishment of religion — what people colloquially call the “separation of church and state.”
Perhaps this is because they would be unlikely to convince a judge — even a Massachusetts judge — that the term “under God” in the Pledge establishes an official state religion.
Thus, instead of citing the “establishment clause,” the Does challenge the Pledge on the basis of the Massachusetts Constitution’s guarantee of “equal protection.” In other words, they claim that Acton schools discriminate against atheist children when they say the Pledge.
Will this argument be more successful than the Establishment Clause route?
Here are some excerpts from the original lawsuit from 2010 (PDF):
22. Just as America’s Jews, Hindus, and Muslims would feel excluded and marginalized if they were told by their government on a daily basis that the United States is one nation “under Jesus,” so do the Does feel about their government affirming to them through a regular public school ceremony that their country is “under God.”
23. The continued daily, school-sponsored affirmation in public schools, where the minds and opinions of young citizens are shaped, that the United States is “under God” marginalizes the Plaintiffs and reinforces the general public prejudice against atheists and Humanists, as it necessarily classifies them as outsiders, defines them as second-class citizens, and even suggests that they are unpatriotic.
24. While the Plaintiffs recognize that the Doe children have the right to refuse participation in the flag-salute ceremony and Pledge recitation, they do not wish to be excluded from it, and in fact they want to be able to sincerely participate in a ceremony that does not discriminate against them.
25. The Plaintiffs have suffered and continue to suffer actual harm as a direct and proximate result of the Defendants’ actions of conducting a regular classroom Pledge recitation that includes the affirmation that the United States is “under God,” thereby having their religious beliefs publicly rejected, having their patriotism and the patriotism of their religious class brought into question, and being portrayed as outsiders and second-class citizens.
It sounds like lawyer (and author of Nonbeliever Nation) Dave Niose is grasping at straws. Even though it’s possible for atheists to feel left out when others are saying the Pledge, to suggest the school is actively discriminating against atheists seems unfounded and I just don’t think hurt feelings are going to win the lawsuit. I know we sometimes talk about how kids may feel isolated if they’re the only ones not standing for the Pledge, but it’s a big leap to call that purposeful discrimination.
To any lawyers reading this, I’d love to hear if/why you think this case has a chance.
Again, I’m no lawyer, but it sounds like taking the Establishment Clause route with a family that has proper standing (and will have it for years to come) is the only chance we have of removing the Pledge from public school classrooms once and for all.
***Update***: I had a chance to talk to a lawyer about why this case may or may not have a chance of succeeding. It turns out there are good reasons for taking Niose’s route:
1) The Establishment Clause route has been tried before several times, without any success.
2) Equal Protection allows atheists, just like other minorities, to assert an identity-oriented claim. When someone is telling us we’re second class citizens or that we don’t belong, as Niose argues the Pledge does, it’s grounds for citing Equal Protection. That doesn’t apply when you’re taking the Establishment Clause route.
3) By using Equal Protection and not the Establishment Clause, no one can point to the “intent of the Founding Fathers” as a reason for continuing discrimination against us. That argument has been made in previous Pledge cases. (Think about how when African-Americans file Equal Protection cases, the Founding Fathers’ views about slavery are not used against them.)
So perhaps there are some good reasons for taking this route. We can debate the merits of it and predict how the courts might react to it, but this is hardly a frivolous lawsuit. In fact, there are some strong reasons for going this route.
***End of Update***
Ironically, another family is counter-suing, saying that changing the pledge discriminates against their children.
“They’re asking for my clients to be silenced and not to be able to say the pledge at all. That’s not right,” said Eric Rassback, Beckett Fund Religious Liberty.
How’s that for a dumb argument? “They won’t let us give God a shoutout during the school day! Y U TAKE AWAY OUR RIGHTS?!”
Side note: There’s currently a petition on the White House’s website that won’t do any good but addresses this very issue.