Watch the Oral Arguments from the Massachusetts Pledge of Allegiance Case

Here’s something you don’t see every day: A case argued in front of a high court. The U.S. Supreme Court doesn’t allow cameras, but the Massachusetts Supreme Judicial Court does, and so we have video of Tuesday’s argument to pull the Pledge of Allegiance from public school classrooms because they are discriminatory against atheist students:

David Niose, who represented the plaintiffs is the first speaker in that video. The judges grilled him but he responded to each argument well. The judges asked even tougher questions, it seemed to me, of the other side.

Lisa Redmond of the Lowell Sun summarized his portion of the arguments this way:

In his argument, Niose told the justices that schoolchildren over the years have been “indoctrinated” by the pledge to think that believing in God is patriotic. But those two words “invalidates atheists” and labels them as “unpatriotic,” he argued.

Chief Justice Roderick Ireland noted that every morning in courthouses across the state, including the SJC, court officers use the phrase “God save the Commonwealth,” at the start of court session. Roderick suggested that if “under God” is eliminated from the Pledge of Allegiance in schools, it could trigger a ripple effect in courthouses, sporting events and other activities.

Niose countered that the use of “God” in court and sporting events is “truly ceremonial.”

Justices Barbara Lenk and Ralph Gants both focused on students being able to opt out of saying it. Niose replied the opting out is “baby steps” in the right direction, but children face being stigmatized if they opt out of that portion of the pledge.

At one point, Niose suggested schools “start from scratch” in rewording the pledge.

You can see a post-court interview with Niose here:

***Update***: Niose responded to Redmond’s column in an email to me:

When I used the term “baby steps” in response to a judge’s question, the judge and I were not talking about the possibility of allowing children to opt out (which everyone has already because of the 1943 Barnette free speech case), but rather we were talking about the judge’s suggestion that they impose a requirement on schools to tell all children about the option of not participating. (After all, even though kids don’t have to participate, many don’t know that. I said that such notice would be “baby steps” in the right direction, but that it would be better to just end the exercise.)

And when I talked about stigmatization, I was not referring to children being stigmatized for not participating, but rather I was referring to the Pledge itself stigmatizing atheists by associating God-belief with patriotism…

And when I said schools could start from scratch, I was not talking about rewording the Pledge as Redmond writes. I was referring to designing a daily exercise to instill patriotism. As we said in our briefs, a daily exercise need not be a Pledge at all — it could be a song, a quick lesson about a historic hero, etc.


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.

  • kielc

    There was a girl in my elementary school who opted out of the POA because of the “under God” thing. I can’t decide whether the fact that I remember her 40 years later is evidence that she was stigmatized, or if my memory that it was no big deal is more accurate.

    • 3lemenope

      It depends entirely on where you are and what’s going on. I grew up in New England and went to high school in the ’90s, and in that context there was very little pressure to take the pledge seriously. Four or five kids routinely sat through the loudspeaker recitation. I usually stood, but silently; occasionally when in a snarkier mood I’d say “I pledge allegiance to…[long silence]…liberty and justice for all.” The homeroom teacher, who was a veteran, talked with the class about what it meant to him and why he said it, but was totally respectful of kids who did not wish to and definitely didn’t belabor the point.

      I imagine post 9/11, and in other areas of the country, experiences would sharply diverge from this.

  • Heidi McClure

    “Roderick suggested that if “under God” is eliminated from the Pledge of
    Allegiance in schools, it could trigger a ripple effect in courthouses,
    sporting events and other activities.”

    GOOD!

    I opted out of the morning moment of prayer/silence/whatever once back in 5th grade. Some kid in the hall asked me why. My answer: “Because it’s stupid.” The kid told the teacher, and I was… spoken to for that. So much for opting out. (And yes, this was in Massachusetts.)

    • flyb

      “GOOD!”

      Agreed. And I think Niose’s response was just pandering to the judges, some of whom probably believe that “ceremonial” bullshit. It’s bad enough that this crap is already creeping in at some baseball stadiums during the 7th inning stretch (singing God Bless ‘Merica). That damn song is going to replace Star Spangled Banner as the US national anthem someday. You watch.

    • allein

      “GOOD!”

      First thought: “And this is a problem because…?”

      And sporting events? Really? This is their argument? They might not say “God” at a baseball game?

    • Kit Love

      I sat through MANY detentions for not saying the pledge… but supposedly that is unconstitutional. I didn’t know that it was. I didn’t know it was my right to be able not to say it, and I didn’t know until much older that the teacher giving me detentions was violating my right.

      • athe

        It is flagrantly unconstitutional. It’s times like this that I wish that the A.C.L.U. still published things like “The A.C.L.U. Guide for Students.”

        • UWIR

          The trouble is, the sort of people who do things like going on the ACLU website and reading what they have to say about student rights are the sort of people who probably already know that they don’t have to say the pledge, and trying to actively get guides to all the students is a tall order.

    • SeekerLancer

      “Oh no! If we fix this problem we might actually have to fix other problems!”

      • closetatheist

        exactly what I thought.

      • UWIR

        It reminds me of how in the 50s, people said things like “If we let men have sex with each other, what’s next? Are they going to ask to be allowed to marry each other?”

    • midnight rambler

      I had to laugh at this, because I grew up in Massachusetts, and the “moment of silence” was always seen as pointless and a complete joke by everyone, at least all the students. The way it was run was that everyone had to be silent for a full minute, and if anyone made a sound the count was restarted. So we would keep an eye on the clock and someone would whisper something at about 50 seconds in. With shielding so the teacher couldn’t tell who it was, we could delay the school day by a good five minutes.

    • UWIR

      How would sporting events be affected? Is “God Bless America” sung at public school sporting events?

  • Bitter Lizard

    Is doing the Pledge of Allegiance at all different from something we would make fun of the North Koreans for doing? Having children mindlessly repeat the same words over and over again while sta‭ring at a symbolic piece of cloth with the intention of fundamentally transforming how their brains process loyalty to the state?

    Francis Bellamy originally considered adding the word “equality” to the Pledge, but decided it wouldn’t go down because of opposition to equality for women and black people. Years later, instead of adding “equality” to make it more inclusive, “under God” was added to make it even more divisive, ironically right before the word “indivisible”.

    The Pledge is a fucking lie and always has been.

    • the moother

      Truth

  • Major Nav

    “The Pledge is a fucking lie and always has been.”
    The pledge isn’t a lie, only the people who don’t mean it or those who force others to say it. Forcing someone to say it kind of violates the “liberty…for all” part of it.
    What if we change it to “under gods”, then the three largest religions would join us in the fight to remove it.

    • TheG

      It is a lie if it says we are “one nation, under god” when there are millions of Americans who are not “under god.”
      Further, owing to the decisive nature of the inserted religion, we are also no longer “indivisible”. Look what happens when you try to remove the religious part of the pledge: DIVISION.

    • the moother

      I think the reasons given were clear and accurate. Patriotism is one of the most childish of emotions. It is also one of the 7 deadly sins (if you believe that shit anyway – PRIDE).

      Being proud of something that is an accident of birth to the detriment of others is about as childish as pointing fingers at a redhead. Naturalised immigrants on the other hand CAN be proud of their decision to become citizens of another country because they CHOSE to do it.

      If you want to be proud, be proud of a university degree, or a promotion in your job, or the success of your kids. NOT of a stupid flag that has only a divisive meaning or a piece of land that is, fundamentally, no different from any other piece of land on the planet.

      • 3lemenope

        This is unnecessarily reductive of patriotism. Patriotism does not need to be restricted to caring about one plot of historically apportioned land over another. It can be about rather more abstract things, like an affinity with one’s own cultural tableaux, your people’s history, even their achievements as they link to and affect the present. For my part I frame my patriotism in terms of the US’ remarkable tumultuous history that has as an aspiration of ever expanding the circle of people that the culture deems “American”, a part of our history that proceeds apace today. We started with straight white male Christian landowners being the essential unit of citizenry, and have fiercely (and rather quickly, on the timescale of national histories) peeled away those criteria to acknowledge and embrace a far more vibrant and diverse polity.

        There is nothing about patriotism that necessitates a patriot be uncritical of their country or their country’s current government, nor must one reflexively support all of that government’s diplomatic positions or military adventures. It is a disservice to the concept to accede to the lazy purveyors of a superficial patriotism whose only function, it seems to me, is to shut down discussion and debate. The concept of patriotism does not belong to, and should not be surrendered to, reactionary idiots.

      • rwlawoffice

        I for one am very happy that there are thousands of volunteers in the military who risk their lives and thousands more who have lost them over the years because of their patriotism to allow you the freedom to think it is all bullshit. You should really thank them.

        Why do you think that it the only things to be proud of revolve around you? The reason to be proud of the flag is not because it is a piece of cloth. It is because of what it stands for.

        • ShoeUnited

          Between the Patriot Act, Guantanamo, Afghanistan, Iraq, the War on Terror, the War on Drugs, NSA hacking, the suspension of habeas corpus when it comes to terrorism charges, and now Syria? I’ve said it before and I’ll say it again:

          If they don’t quit fighting for my freedoms, I won’t have any left for them to fight for.

          • rwlawoffice

            Thanks to the freedoms that enjoy you can speak out against these policies you disagree with, you can petition your government and you can vote to put people in office that you think will follow your desires and change these policies. I agree in a lot of respects our government is out of control and that there definitely needs to be a change of leadership.

            • ShoeUnited

              What freedom was in danger from outward forces before the Patriot Act was passed?

              Yeah, some terrorists bombed a building. Yes, countless lives were lost and that’s a tragedy. But let’s say we didn’t go off half-cocked and pass the Patriot Act for security; after the building was blown up but before the law, what freedoms got reduced? How come the 3 times before they tried (and once even succeeded) setting off a bomb in the WTC buildings, our freedoms were not reduced. The OKC building getting blown to kingdom come didn’t remove any freedoms. Countless bombings around the world happened but our freedoms weren’t at threat.

              What happened was that the US acted (rather childishly) and removed some of the very freedoms that the terrorists didn’t like. So in response we not only sent out young men and women out to die in the desert in a pointless war based on lies, we then also curbstomped our own freedoms at home.

              And who are you to say I didn’t contact and act within my limited political arm to try to stem this bleeding of liberty? You just assume that because I can see the writing on the wall that I’m apathetic? That I did nothing? That I didn’t vote, or write my congresspersons? Or do you only implying that laws that pass only occur when people get their way? Does that mean you wanted less freedoms? Did you contact your congressperson and tell them “Oh please remove my right to a fair and speedy trial!”?

              And how dare you try to assume that you’re the only person who has met, knows, is related to someone in, or supports the military. My point that went so far over your head is now residing in lunar orbit, is that every time in the last decade and change that we went to go fight someone, more freedoms are removed at home. My point is that instead of sending more people off to get themselves killed for another pointless bloodbath, we should keep them home or help secure places abroad like the 38th Parallel, and then fix what has been destroyed here.

              I posit that it is YOU who does not support our troops, since it seems YOU are willing to throw our lives away. YOU don’t care about our freedoms since YOU don’t care that we’re eroding them; instead parroting by-lines.

        • 3lemenope

          When in either of our lifetimes have we been in a shooting military conflict with an existential threat to the US?

          The last veterans that deservedly get thanked for protecting our freedom fought in a little ditty called World War II. Any time during the Cold War you might unironically get away with protecting “our way of life”. I personally have great respect for people who contribute military service and don’t take them for granted, but it takes but a few seconds of thought to realize the “thank a soldier for your freedoms” shtick is rather manipulative hyperbolic bullshit.

          This commentary and opinion brought to you in large part by my grandfather. Who was in the US Army in WWII.

          • rwlawoffice

            You and I will have to disagree that the “thank a soldier” for our freedoms is bullshit. Having family in the military and living in a military town I see it differently. I do agree that WWII was the last time there were countries that declared war against us directly and officially, but I don’t discount the other threats that are real and that our military has protected us from.

            • 3lemenope

              I do agree that WWII was the last time there were countries that declared war against us directly and officially, but I don’t discount the other threats that are real and that our military has protected us from.

              No, you are misunderstanding what I’m saying. I’m not making a technical point about war declarations. I’m saying of all the nations we have actually fired at and been fired at by, exactly zero of them, that is none, have presented a credible threat to Americans’ freedoms since the end of World War II.

              I allow for the “way of life” claim on the grounds that we were in a proxy non-shooting dick waving contest with an entity that could, if it chose, present a credible threat (as we did in turn for them) during the Cold War.

        • the moother

          A flag stands for nothing more than a waste of cloth. And it’s impossible to fight for freedom in another country. In what way did killing iraqis or afghans or viet cong or, soon, syrians ever make anyone more free?

          Can you explain the mechanism that makes the deaths of people halfway around the globe mean freedom for you?

          You can’t because you’re just unthinkingly repeating the bullshit that gets fed to you. Get a brain, man.

  • cary_w

    I am a citizen of a country that was founded on the principles of personal freedom and liberty, with one of our most cherished rights being the freedom of speech. Therefore I believe it is MORE patriotic to pay homage to those rights by NOT participating in reciting the pledge in most circumstances.

  • Chris Harmon

    My grrls have been bullied over the pledge.

    • C.L. Honeycutt

      Ugh, I’m sorry.

  • Pithecanthropus

    *At one point, Niose suggested schools “start from scratch” in rewording the pledge.*

    Here’s “scratch”:

    “I pledge allegiance to my Flag and the republic for which it stands, one nation indivisible, with liberty and justice for all.”

    • keddaw

      “I pledge nothing because this is a free country and I am a free individual and I owe it nothing.”

      Except taxes, all my emails, my phone records, my browsing history, my bank details, my transaction details etc. etc.

  • b33bl3br0x

    Justices Barbara Lenk and Ralph Gants both focused on students being able to opt out of saying it.

    IMHO the best response to this is really from the majority decision in Lee v. Weisman:

    [T]here are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools…The mixing of government and religion can be a threat to free government, even if no one is forced to participate. When the government [school] puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs. A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some. Only ‘[a]nguish, hardship and bitter strife’ result ‘when zealous religious groups struggl[e] with one another to obtain the Government’s stamp of approval.’

    Also, concurring opinion from McCollum v. BoE

    That a child is offered an alternative may reduce the constraint; it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school’s domain. The law of imitation operates, and nonconformity is not an outstanding characteristic of children.

  • Jane Williams

    Treaty of Tripoli

    Under President John Adams, the U.S. Senate ratified it
    unanimously on June 7, 1797 and signed by Adams, took effect as the law of the
    land on June 10, 1797.

    Read article 11, which begins with: “As the
    Government of the United States of America is not, in any sense, founded on the
    Christian religion,

  • Lagerbaer

    Just one thing: Why do we even need a daily exercise to instill patriotism? If you have to work so hard to make people patriotic, maybe start with making this country a place to be truly proud about?

    • busdriver

      I tell the people that insist reciting the pledge makes our children better citizens to try getting your co-workers to recite it at the beginning of their work day. They can tell me about all the “are you crazy” comments they’ll hear.

  • hammerdog_callahan

    One good argument that wasn’t addressed is the fact that “One nation under God” is divisive. It is contrary to the original intent of the pledge. The old pledge that just said “indivisible” was inclusive for everyone. Now the pledge excludes a large group of Americans who don’t believe. It is the opposite of and mocks the word, “indivisible”. It is in fact very divisive.
    The nations motto used to say “E pleurbus Unum” which was also all inclusive. Now with the motto being, “In God We Trust”, The nation is divided once again into believers and non believers. It is the opposite meaning that cancels and scorns the original motto.

    • http://itsmyworldcanthasnotyours.blogspot.com/ wmdkitty

      *Pluribus

      Sorry.

  • Noelle

    I’ve seen a good number of Christians who say they don’t want their children forced to say the pledge because idolatry and government-run school indoctrination and what-not. What’s that thing called when you join up with another group for a common cause even though you don’t really like each other?

    • C.L. Honeycutt

      Politics?

      Marriage?

      No, wait: fandoms!

    • Itarion

      Strange bedfellows?

      The enemy of my enemy?

      An uneasy alliance?

  • Guest

    Great drinking game: drink every you know time the you know second guy you know says “you know” you know?

    • Itarion

      You know for a fact, and I know you know this, that that will only work if you know the guy who said, “you know.” You know?

      • http://itsmyworldcanthasnotyours.blogspot.com/ wmdkitty

        Medic… *hic*

  • Itarion

    A short lesson about a little known character of Americana actually sounds like a really cool idea. One that could go wrong very easily, but still a cool idea.


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