The Massachusetts Supreme Judicial Court Will Soon Decide the Fate of the Pledge of Allegiance

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.

In June of 2012, a judge ruled against the family, saying that this wasn’t really a case of discrimination:

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.”

Then… what does it convey?

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.

The Center for Inquiry filed an amicus brief, written by CEO Ron Lindsay, in defense of the Humanist parents and their kids:

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.

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.

  • BobaFuct

    I haven’t thought super hard about this, but I’m increasingly inclined to reject entirely the idea of the pledge and just forget it ever existed. In addition to the arguments against it, I honestly can’t even remember the last time I was at an event that included it, so clearly it’s not something that has any particular relevance. So why even bother?

    • Brian Westley

      Kids in public school get it every day, and in MA, it’s required by law (though I’m sure they can ostracize excuse themselves).

    • allein

      Yeah, I don’t really get it, either. When does anyone say it once they finish high school? Why is it necessary for children to say it every day? Does it expire after 24 hours? What about weekends and summer vacation? And if it’s such an “important patriotic exercise” to say the pledge, why is it then acceptable to say, “but you can leave out whatever parts you don’t want to say”?

    • Michaela Samuels

      I think ball games and public schools are probably the most frequent opportunities to recite it.

  • Art_Vandelay

    Even without the “under God” part, it’s something you’d expect to see in an imperialistic tyranny. Social engineering at it’s finest.

    Plus, since it was added as a response to the Godless communism in the 50s, clearly for pointing out that this somehow makes us better than them (as if God waited 14 billion years to pick a team), it not only implies that you’re unpatriotic for rejecting a deity…it implies that you’re not even American.

    • Mr. Pantaloons

      It becomes even less charitable as an engine of patriotism when you realize that it was written by a white supremacist.

      “Where all classes of society merge insensibly into one another every alien immigrant of inferior race may bring corruption to the stock. There are races more or less akin to our own whom we may admit freely and get nothing but advantage by the infusion of their wholesome blood. But there are other races, which we cannot assimilate without lowering our racial standard, which we should be as sacred to us as the sanctity of our homes.” – Same guy

      • Art_Vandelay

        Absolutely. He was also a socialist. Originally, during recitations of the pledge, kids would have to salute the flag the whole time in the same manner that Nazis saluted Hitler.

        • Mr. Pantaloons

          Personally, I’m not sure whether that, or that it was appropriated as a gut reflex in the name of American democracy, is the more amusingly ironic.

        • UWIR

          It wasn’t the exact same salute, and his salute came first, so I don’t see that this is a very legitimate point.

          • Art_Vandelay

            No, I know. It’s not really a point against the PoA. I just think it’s interesting. You’re correct though.

          • C.L. Honeycutt

            It’s telling that fascists controlling two other nations thought his pledge (which he explicitly said was intended to indoctrinate children to obey the state) was such a good idea that they adopted it.

      • Kevin R. Cross

        To be perfectly fair, at the time it was written, white supremacism was pretty much a standard viewpoint in the US.

  • TnkAgn

    As a former public school teacher, the law in my state required (and still does) teachers to lead the classroom in a recitation of The Pledge. The implication, of course, was that most, if not all, students will follow along. Not only did I silently protest by omitting the words, “under God,” but I alway felt that it is inherently wrong to ask children to swear an oath that they cannot possibly understand nor appreciate.

    • Steven M. Long

      It was years before I realized that I wasn’t the only one omitting the “under God” part as a kid.

      • allein

        By high school I was omitting the whole thing. They played it over the loudspeaker and I just stood and listened. Didn’t even bother with mouthing the words. Either no one noticed or no one cared.

        • Steven M. Long

          I don’t think they had the pledge at my high school, which is a good thing, overall.

          • allein

            They played it with the national anthem for background music. Maybe cuz my town is known for a big Revolutionary War battle…

            • http://twitter.com/smlongwrites Steven M. Long

              I think some of this is a majority/privilege thing: a lot of people think of the pledge as patriotic, and since they believe in God, they don’t see the big deal about forcing it on everyone else.

        • SeekerLancer

          Some homeroom teachers in my school were hard-asses about it. Some didn’t even stand up themselves to recite it.

          • allein

            I never had a teacher make a big deal about it. Then again, I never saw a kid refuse to do it (or at least pretend to), either, so I don’t know if any teacher would have done anything or not. I imagine there were some.

    • UWIR

      “As a former public school teacher, the law in my state required (and still does) teachers to lead the classroom in a recitation of The Pledge.”
      The law in your state is a former public school teacher? Seriously, though it seems to me that if teachers are required to lead the Pledge, they have a rather strong case. If a teacher were willing to sue, the courts wouldn’t be able to use the “it’s voluntary” excuse. And even if it’s not required, it’s got to be awkward for a teacher to just sit and not participate. I don’t see how any reasonable person could disagree that it’s undermining a teacher to highlight a their atheism every day.

      • TnkAgn

        1. Good catch. For the record, I taught social studies; neither English nor grammar.
        2. I agree that a teacher filing suit might very well have legal standing. And, while I only omitted the “under God” part of my Pledge, I did have colleagues who stood silently. I do not recall any “sitters” among any teachers.

    • http://gristleoflife.wordpress.com/ Analog Kid

      Exactly. All these kids hear in their head is: “Blah blah blah, blah blah blah.”

      That said, no child should be forced to say “under god”. Religion has as much place in a public school as an evolution textbook has in an evangelical church pew.

  • Meyli

    I did not know it was state law to recite the Pledge, in schools. Hmph.
    I don’t think it should be required of anyone, and especially not children.
    Is there a way to get around this…?

    • http://squeakysoapbox.com/ Rich Wilson

      Children, by law, can opt out. Not that all know this or want to make themselves outcasts by doing so.

      (the right to opt out of the pledge was won by Jehovah’s Witnesses in 1947)

      • Arielle

        Even if it’s the law, I can recall students being punished for not standing and reciting the pledge properly up into high school. They’re pretty serious about it in the area I live. You don’t stand, you get written up; no hand over the heart, write-up; don’t verbally recite it, write-up; purposefully omit something and get noticed, write-up.

  • more compost

    We beat the damn godless communists, OK? Let’s go back to the original pledge, please.

  • rtanen

    I always talk about “One nation, under law,” when I recite the pledge in class. It has a similar vowel sound, and since one of the big principles that goes along with the “justice for all” component is that everyone is subject to the law, it fits well with the general theme of the pledge, which seems to be a list of what we (the pledge-writers) think our most important values are.

    • Kevin Hare

      I have been saying “…one nation, under law…” for over 20 years and encouraged my children to do so, also. After all, the nation was founded under the Constitution and it is the “Law of the Land”. It has the added benefit of allowing me to not remain silent, it blends well, and is true.

      Like minds, and all that.

      kevbo

  • newavocation

    Deeds not creeds, prayers, or pledges show what kind of citizen you are. Teach the kids that!

  • Without Malice

    It threw me for a loop when they added under God to the pledge. Didn’t have any idea what they were talking about.

  • Jeff

    Using the 14th amendment is a more intelligent way of addressing this from a legal standpoint. It defeats some of the “persecution” argument usually brought forth in the first amendment cases.

  • Jane Williams

    Does a pledge expire over night so that it must be repeated daily? If so what happens to those MA students over the weekend and during school breaks?
    Besides the “under god” thing, I dislike the daily requirement.

  • SeekerLancer

    Well here’s to hoping this finally happens, but I’m not holding my hopes too highly.

  • Kristin

    “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.”

    I think you meant to say, “Because the plaintiffs are arguing under *state* constitutional law instead of *federal* constitutional law, SCOTUS does not have jurisdiction in this case.” SCOTUS could have jurisdiction to hear an appeal that this “pledge of allegiance” state law is unconstitutional if the plaintiffs had argued using the 14th amendment of the US constitution.

    This is an important distinction because this ruling will only be binding law in MA, which is an important distinction to understand.

    (Disqus won’t let me log in. Grrr.)

    • Kristin

      http://www.justice.gov/usao/justice101/federalcourts.html

      “The Supreme Court of the United States is the highest court in the American judicial system, and has the power to decide appeals on all cases brought in federal court or those brought in state court but dealing with federal law. For example, if a First Amendment freedom of speech case was decided by the highest court of a state (usually the state supreme court), the case could be appealed to the federal Supreme Court. However, if that same case were decided entirely on a state law similar to the First Amendment, the Supreme Court of the United States would not be able to consider the case.”

  • freddieknows

    This makes me proud to have been born, raised, and live in Massachusetts, possibly the most progressive state in the union. I have every confidence that the MA SJC will do the proper thing and rule specifically on the law. This is a court with a long history of ignoring popularity and politics to do the “right” thing under the law. Condemned by George W. Bush as “activists judges,” this was the court that made gay marriage legal in MA (the first state in the US to do so) as a result of their decision in Goodridge v Dept of Public Health, another case decided based upon equal rights under the state constitution.

  • Gregory Lynn

    Can I just ask, when the hell did Massachusetts start requiring the Pledge?

    I went to public schools in Massachusetts for most of my K-12 years and I don’t think it was ever suggested that we should be doing the pledge every day.

    Granted, that was more than twenty years ago, but I have a hard time believing Massachusetts passed this law without me noticing.

    • Bill Santagata

      I’m pretty sure every state has such a law: schools (not the students) must say the Pledge of Allegiance at the beginning of each school day.

  • Bill Santagata

    This is a nonsense lawsuit that will not prevail.

    • The Watcher

      Why?

  • Tobias2772

    As a school teacher, it would mean a whole lot to me to see the pledge done away with. I have always thought that a mandatory pledge of allegiance was a bit oxymoronic.

  • Tracy Robinson

    Is it just me or did replacing “indivisible” with “under God” split us right in two? :P

  • ActualDeadhead

    Another chance for our Supreme Court to take a stand for minority rights. Let’s hope they get this one right. Don’t forget that this court was the first to find a right to gay marriage.

  • hartkid

    As a child I would stand and cover my heart, but would pretend to speak. I refused to say stuff I didn’t understand. And I didn’t like the word “pledge”.

  • Jo.Hiebert

    If you must pledge something, use the 4H Pledge. More meaningful and no deities required.

  • http://shitmytoiletsays.blogspot.com/ Crud O’Matic

    Civil disobedience. Every atheist student in MA should refuse to say the pledge as an act of disobedience. They want to twist your arm into saying the pledge? Spit back in their face.


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