On September 4, the Massachusetts Supreme Judicial Court will hear a case that could change the daily ritual of reciting the Pledge of Allegiance in the state’s public schools.
Here’s the relevant backstory (with additional updates at the bottom):
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 wasn’t arguing that the Pledge was unconstitutional because it “established religion” like Michael Newdow argued 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:
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.
Then… what does it convey?
… 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.”
Anyway, the AHA appealed the judge’s ruling and they got word last October that the state’s Supreme Judicial Court had accepted their case for review. Instead of having the case heard by another lower court, the highest court in the state would 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.”
And that brings us to now. The oral arguments will take place in September and you’ll be able to watch the proceedings live.
In its brief, CFI makes two principal points. First, assuming the Pledge is an important patriotic exercise — as defendants maintain — the students are being denied the opportunity to participate in this important exercise solely because they are unwilling to affirm belief in God. This is not a legitimate reason for their exclusion, just as there is no legitimate reason for excluding persons from testifying or serving as public officials because they are unwilling to affirm belief in God. Second, any justification for requiring students to say this is one nation “under God” must be subject to strict scrutiny given the long history of legal discrimination against atheists in the United States.
CFI also makes this worthwhile point in its brief:
If the purpose of the Pledge is to instill patriotism, this task plainly can be accomplished without requiring students also to affirm belief in a deity. To hold otherwise would be to rule that one must be a monotheist to be a true patriot and participate meaningfully in a patriotic exercise. Such a ruling would be directly contrary to the equal protection guarantees of the Massachusetts Constitution, which provide that one’s standing in the political community is not dependent on one’s religion.
If the Court rules in their favor, it would likely put a stop to daily recitations of the Pledge (without altering the wording of it).
Keep in mind that, because this case is all about a state law that requires mandatory recitation of the Pledge, this is the end of the line. The Supreme Court of the United States won’t get a crack at this. Whatever the justices at the state’s highest court say after September 4 will be the final word.