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.
… 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.