Massachusetts Supreme Court Will Hear Case to Stop Reciting the Pledge of Allegiance in Public Schools

Back in 2010, the American Humanist Association’s Appignani Humanist Legal Center and Dave Niose (a lawyer and author of Nonbeliever Nation) filed a lawsuit on behalf of a family whose children attended schools in the Acton-Boxborough School District (in Massachusetts). The issue was that the children — ages 13, 11, and 9 — had to say “Under God” in the Pledge of Allegiance and that went against their family’s beliefs. (The names of the family members have been kept anonymous, presumably so that they’re not directly harassed by Christians.)

What made this case unique was that Niose didn’t argue against saying the Pledge because of the Establishment Clause of the Constitution, like Michael Newdow had done over a decade ago.

Instead, Niose fought it under the “Equal Protection” part of the Constitution — that is, he argued that the children were being discriminated against (PDF):

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.

In June, a judge ruled against the family, saying that this wasn’t really a case of discrimination (PDF):

I can only conclude that the insertion of “under God” into the Pledge has not converted it from a political exercise… into a prayer…

Moreover, [the laws don't compel] the [children] to participate; they are free to refrain from speaking any part of the Pledge…

Accordingly, the Pledge is not a religious exercise, and, in that context, the daily recitation of “under God” does not constitute an affirmation of a “religious truth.”

I’m no lawyer, but I don’t see how saying “Under God” is anything but religious…

Anyway, the AHA appealed the judge’s ruling and they just got word that the state’s Supreme Judicial Court has accepted their case for review. Instead of having the case heard by another lower court, the highest court in the state will tackle the case directly:

“Public schools are defining patriotism and loyalty on a daily basis by exalting one religious group and stigmatizing humanists and other non-theists. Of course that’s discrimination,” said American Humanist Association Executive Director Roy Speckhardt. “We feel confident that a fair hearing will result in a finding that the state law requiring this discriminatory practice violates the state’s equal rights amendment.”

The oral arguments will occur early next year.

No doubt the Christian Right will bring out all of the weapons on this one. Their argument up to this point has been that removing the recitation of the Pledge of Allegiance is basically anti-Christian. It’s not. Students can say the Pledge if they want to; the AHA is just arguing that it shouldn’t be a formal part of the school day.

The Becket Fund for Religious Liberty will represent the Christians in this case:

“Members of the American Humanist Association have the right to remain silent if they want to, but they don’t have the right to silence everyone else,” said Diana Verm, Counsel at the Becket Fund. “We are confident that the Supreme Judicial Court will uphold the Pledge just like every other court that has decided this question,” added Verm.

If the Supreme Judicial Court agrees with the AHA, we could be seeing another Newdow-like situation where every nationwide media outlet is reporting on this case and discussing the proper role of church/state separation. More importantly, if the AHA wins in court, the Christian groups will likely appeal to the (national) Supreme Court, and since the family has standing in this case for many years to come, the justices couldn’t just dismiss the case as they did before…

Anyway, all of this is wishful thinking. If the state court rules against the AHA, the story may just end right there.

***Update***: I just got some additional clarification on the matter so I wanted to update this: The case will not go to the Supreme Court because what’s being challenged is the state law requiring mandatory recitation of the Pledge. In other words, once the Massachusetts Court decides the matter, it will be final.

About Hemant Mehta

Hemant Mehta is the editor of Friendly Atheist, appears on the Atheist Voice channel on YouTube, and co-hosts the uniquely-named Friendly Atheist Podcast. You can read much more about him here.

  • James A. Lindsay

    Regardless of what happens in the Massachusetts court, the liberty-infused, jingoist Christian Right is going to blow its stack over this. Jon Stewart will have material for what may end up being months.

  • Willy Occam

    “Under God” or not, I’d like to see the day when we do away with the whole damn pledge.  Our young citizens don’t need to brainlessly recite this nonsense at a symbolic piece of cloth like a bunch of zombies to be good Americans.  That whole ritual used to bother me as a kid… like watching films of the Hitler Youth or Maoist drones all in lockstep in the blind service of country/honorable leader.  And I’m sure this will come as no surprise, but here in Texas, school children have to say a pledge to the Texas flag as well. Which begs the question:  How can you have allegiance to three separate entities — your state, your country, and a god?

  • chicago dyke, Blonde

    i really, really wish that those people of faiths that don’t allow oath taking, and those religions with more than one god(ddes) would step up and join the humanists and atheists. there are  sects of Jews and Muslims who would object to the use of the english word “god” instead of “Allah” or “YHWH” and others who would object to using the word for (a/some/the) divinity at all. come on, cultists! Wiccans, Jains, Satanists,Hindus, Quakers, LDS, Jehova’s Witnesses, orthodox extremists of every kind: you’re all invited.  this is one of those rare moments when we can all stand together in favor of what we all want, which at the very least is the end to mainstream catholic and protestant Christian tyranny in this country’s laws and practices.

  • machintelligence

    Pledging allegiance to a flag (of all things) sounds idolatrous to me.

  • Stev84

     Have you seen the original salute they performed until 1942?:

  • Brian Westley

    Hemant, if the state supreme court rules against the pledge based only on state law, it CANNOT be appealed to the national supreme court unless that ruling somehow infringes on a federal right like the first amendment (and, as everyone knows, NOT reciting the pledge in public school doesn’t infringe on anyone’s rights).

    So if the state supreme court rules against the pledge, it should end up as the final decision (but wouldn’t apply outside the state, either).

  • Willy Occam

    Thanks for the history lesson, Stev84… that’s even creepier than the pledge I grew up with!

  • DeviousSoybeans

    I’ve felt this way since I was a kid, too. It’s creepy indoctrination, peer-pressuring kids to make a serious promise, using language that most don’t even understand. (For that matter, a lot of adults seem a bit confused by the language.) Also, it’s just anecdotal, but every vocal and obnoxious Pledge of Allegiance supporter I know is also super paranoid about anybody limiting their second amendment rights. Included in their argument about the importance of a liberally interpreted Second Amendment is the idea that as American citizens, we need to be able to protect ourselves against our own government. A government we’ve pledged allegiance to.  

  • Thomas Farrell

     I went on a school-organized trip to Germany senior year of high school, and some asshole on the school board insisted that the teacher had to make us recite the pledge every day *in Germany* or she would be fired. So we did.

    It *freaked the Germans the fuck out*. Our tour guide went practically catatonic, and when we finally got her to explain, all she said was “Hitlerjungende!” (“Hitler youth”.) We had to explain to her that this was something imposed on us by a few old assholes that most kids made fun of, and we all recited the Bart Simpson version to prove it. It helped her to realize we all knew the words to that too.

    But if the *Germans* think you’re acting like nazis, something is *wrong*.

  • Thomas Farrell

     Here in MA we also have a state constitutional right to “dignity of person”, I’m surprised they’re not arguing it on that basis. As an atheist a kid would have to either give up their dignity by reciting a religious pledge they don’t believe in, or give up their dignity by being singled out by the class as the one who won’t recite it with them, and neither seems legal here.

  • Andrew Gray

    The issue of whether “under god” is a *religious* statement is somewhat up in the air (google the phrase “ceremonial deism” and see what Sandra Day O’Connor said about it).  The court seems to be concerned with promotion of one religion over another, not with the blanket support of theism over atheism.  In this narrow sense only, “under god” isn’t religious, because it doesn’t promote a religion.  This is (partly) why I think Newdow’s approach (First Amendment) won’t work in the long run — the Court is just not ready to take atheism seriously.

    I do think there’s a chance with this approach, through the Fourteenth Amendment and equal protection.

  • Hemant Mehta

    You are correct. I’ve updated the post to reflect that. Thanks!

  • Amakudari

    “The daily recitation of ‘under God’ does not constitute an affirmation of a ‘religious truth.’”

    Then why’s it there, and why do Christians in particular want to keep it there?

  • Silo Mowbray

    Willy’s right, that was creepy as fuck. Thanks for the info Stev84…I think!

  • Silo Mowbray

    A Scientific Wild-Assed Guess: because it is in the interests of the Christian Right in the United States to normalize as many facets of their faith in American society as possible. It’s just a follow-on to a wedge strategy that the Romans used and perfected. You make your holidays ‘secular’ (see Easter and Christmas), so everyone sees them as a normal part of the entire society, then you slip in other artefacts from your creed like mottos and slogans, and then you add behaviours, and the next thing you know, the entire nation considers your religion to be the default state for everything and everyone.

    But for this to work, you can’t let ANYONE erode the gains you’ve made. Once introduced, an artefact of creed must be baked in to social acceptance, or you could slide backwards. That’s why the Religious Freaks are fighting so hard.

  • Willy Occam

    Man, what a great anecdote!  It’s unbelievable that Americans don’t see the connection between this odious pledge and the rituals of totalitarian dictatorships of the past (or present, for that matter).  But considering how many Americans think that Obama is simultaneously a fascist and a socialist, cultural and historical ignorance seems to be a hallmark of our citizenry. 

  • Gary Hill

    In EU countries, in a court of law, witnesses are asked to either make an ‘oath’ on the religious book of their choosing or a personal ‘affirmation’ on the basis of no religion at all. Legally they are considered equal. Why didn’t someone think of that in the land of the free?

    Better still, why not just ditch the whole thing and stop trying to emulate North Korea?

  • Stev84

    As far as oaths are concerned, it’s the same in the US. In movies it’s always “So help me god”, but that’s optional.

  • HughInAz

    If you pledge allegiance to “one  nation under god”, aren’t you really pledging allegiance to god? The nation is just a middleman!

  • 3lemenope

    I somewhat agree, though I think much of the problem is the way in which students are encouraged to (not) understand it (as a rote exercise), rather than a statement of something aspirational or something that describes foundational values (excluding the 1954 interpolation of “under God”, of course!). As a statement of what the US aspires to be, it is perfectly fine except for that addition. The danger is in the words being meaningless because nobody is encouraged to reflect upon whether the US actually is furthering the cause of liberty and justice, whether it has, whether it will continue to in the future, how effectively, and for whom. 

    In my somewhat snarkier youth, when I’d be in a situation where the pledge was expected to be recited, I would say “I pledge allegiance…[long pause]…to liberty and justice for all.” It doesn’t come up all that often in my life now, and when it does I just respectfully stand silently.

  • 3lemenope

    Most countries have rituals for expressing patriotism and indicating allegiance/support. South Korea and the Philippines both even have pledges of allegiance to their flags extremely similar to the US one. 

    On an entirely different note, it kills me that the original Bellamy pledge was written by an honest-to-goodness socialist. Given the rather absurd levels of hyper-patriotism one finds on the populist right–where most affection for the pledge generally comes from these days–the irony would be painful if it weren’t so funny.

  • 3lemenope

    The first successful Pledge-related challenge was by Jehovah’s Witnesses in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), which established that the government under the vast majority of circumstances cannot compel anyone to say something they don’t wish to say. So, there is definitely historical precedent for  groups like the ones you listed to pick up fights like this when the status quo screws with their own practices. 

    Part of the problem, though, is that often these groups don’t play well with others, and so coalitions are fairly difficult even if everyone wants the same outcome.

  • Karst

    If the state Supreme Court rules for requiring the pledge, why coudn’t the plaintiffs take it to the US Supreme Court?

  • Willy Occam

    Perhaps a better exercise in this regard would be to spend a few minutes in class each day discussing some aspect of the constitution.  It would be a bit more time consuming, but far more productive than a rote ritual like the flag salute.  Maybe if we did this when I was a kid, I might have had a better understanding of what my country stands for, as well as some of its shortcomings.  But that kind of critical thought goes against indoctrination, which I think is a large part of the pledge ritual.

  • William Santagata

    There is no federal question involved.

  • Hifi1

    It’s the last foothold of government promotion of religion in the public schools. 

    If “under God” wasn’t in it, the Tea Party would have gotten any such thing as the federal government indoctrinating their children with a loyalty oath thrown out, long ago.

  • DannyHaszard

    Jehovah’s Witnesses and the flag salute.
     I was born into the Jehovah’s Witnesses in 1957.I was the good little JW boy who got beaten up in the school yard for not saluting the flag and remaining seated for the national anthem as demanded by my defiant Jehovah’s Witnesses leaders.  This was the better dead than red era of the 1960’s, and a kid not doing the act stood out big.
    I suffered much,only to learn that the Watchtower corporation is just another made up man-made religion.My JW leaders *forced* *compelled* me NOT to salute the flag,I wasn’t given any option.If I wavered I would be severely punished by my parents and struck down by God at Armageddon. Kids suffer because of made-up rules by Jehovah’s Witnesses leaders,senile old holy men sequestered in their insulated ivory tower.
    My point is:Jehovah’s Witnesses claim ‘neutrality’ that is false as they DO try to force their convictions on others.
     –Danny Haszard FMI dannyhaszard(dot)com

  • Hifi1

    The connection between the Pledge and fascist dictatorships is more odious than you think. 

    Francis Bellamy was a former Baptist minister who preached that Jesus was a socialist and advocated income taxation, central banking, nationalized education, nationalization of industry, and other tenets of socialism. His challenge was how to replace the federalist view of the country (where states and individual rights were sovereign) with a nationalist one that would pave the foundation for a central socialist government. Re-education of the public would prove difficult. But if American youth could to be taught “loyalty to the state”, it would pave the way for the socialist utopia that was described in his famous socialist cousin Edward Bellamy’s book, ‘Looking Backward”.

    The place to start would need to be primary education. The public schools could be used teach blind obedience to the central state. The opportunity to write a children’s oath that would promote flag worship (and sales) was just what he needed to begin re-directing the citizenry’s loyalty. So it was that, in 1892, Bellamy came to write the original Pledge of Allegiance: A universal tool for inducing children to swear their loyalty to the concept of an American nationstate. The “one nation, indivisible” wording was especially important to Bellamy for achieving his vision of socialism through a consolidated, monopoly government. To drive home the socialist goals, he ended it with a call for “liberty and justice.” He had considered adding the other socialist bywords, “fraternity and equality,” but knew that state superintendents of education on his committee were against equality for women and African Americans and would oppose it.

    A “National Public School Celebration” was promoted to government officials to coincide with the 400th anniversary celebration of Columbus. It was the first national propaganda campaign on behalf of the Pledge of Allegiance. It was a massive campaign that involved government schools and politicians throughout the country. To gain their cooperation, the program lauded government schools, while private schools, especially parochial ones, were criticized.

    Students were taught to recite the Pledge with their arms outstretched, palms down and then up. This was the custom in American public schools from the turn of the twentieth century until Hitler began using it to drill loyalty into his followers. He got it from the Italian fascists, who much admired – you guessed it – American schoolchildren doing it. Around 1950, public school officials suddenly decided that the salute was in bad taste and changed it to the familiar hand-over-heart salute.

    If you want to see what the original vision of indoctrination looked like go to If that doesn’t give you pause… (Herman you really should replace the picture you are using with one of these.)

  • Coyotenose

     Jesus Christ.

  • Coyotenose

     That’s what is confusing me. Couldn’t it be a federal matter based on Constitutionality?

  • Erp

    They are suing under the equal protection clause of the Massachusetts Constitution not any clause of the US constitution so the Federal courts have no jurisdiction (unless one side or the other feels and can make a case that in this case the equal protection clause is unconstitutional under the US constitution).   The latter can happen such as state constitutional clauses requiring a belief in God for certain office holders  (now null and void since  Torcaso v Watkins 1961 though some state officials have trouble seeing this  [see South Carolina and Silverman])

  • Verimius

     Stev84 is right. The US Constitution gives anyone the right to oath or affirm. You cannot be required to swear by God, whether on taking public office or giving testimony in a court.

    The presidential oath specified in the Constitution also allows the president-elect to swear or affirm. “So help me God” is not specified in the oath, and a Bible is neither mentioned nor required.

  • Mark

    Isn’t there something oxymoronic about a mandatory pledge of allegiance.

  • mke039

    If you think the MA courts are going to provide some devine wisdom on this issue…..good luck.
    The courts here suck, the superior court judges are mostly bag men for corrupt state parasites, promoted for their faithful service.
    We just jailed our third speaker of the house here….the most powerful legislative postion in the state.
    MA is a joke and so are the courts