The highest court of Massachusetts has upheld a state law that requires schools to lead daily recitations of the Pledge of Allegiance, and it ruled that the inclusion of “under God” in the pledge does not violate the state equal-protection rights of atheist and humanist students.
The Supreme Judicial Court ruled 7-0 in the case brought against the Acton-Boxborough regional school district by a family identified only as the “Does.” The parents and three children did not cite federal claims under the equal protection clause or the First Amendment’s bar on government establishment of religion.
Instead, the family sued under equal-protection language of the Massachusetts Constitution.
The children were never required to recite the pledge themselves, in keeping with the U.S. Supreme Court’s 1943 decision in West Virginia State Board of Education v. Barnette. But the family argued in a brief that schools conduct a patriotic exercise that “exalts and validates” one religious view— a belief in God—while marginalizing their “religious views” on atheism and humanism.
In its May 9 decision in Doe v. Acton-Boxborough Regional School District, the state high court said that as an initial matter it wanted to make clear that Barnette meant that “no Massachusetts school student is required by law to recite the pledge or to participate in the ceremony of which the pledge is a part.”
“Students are free, for any reason or for no reason at all, to recite it in its entirety, not recite it at all, or recite or decline to recite any part of it they choose, without fear of punishment,” Massachusetts Chief Justice Roderick L. Ireland said in his opinion for the court.
However, the court rejected arguments that the inclusion of the words “under God” turned the pledge into a religious exercise.
“Although the words ‘under God’ undeniably have a religious tinge, courts that have considered the history of the pledge and the presence of those words have consistently concluded that the pledge, notwithstanding its reference to God, is a fundamentally patriotic exercise, not a religious one,” Ireland said.
He cited language from the U.S. Supreme Court’s 2004 decision in Elk Grove Unified School District v. Doe, which involved a federal constitutional challenge to the inclusion of “under God” in the pledge. The high court did not reach the merits of the case, ruling that a noncustodial father lacked standing to challenge the practice at his daughter’s school. But three justices issued opinions saying they would uphold recitations of the pledge in schools, and in the main opinion, Justice John Paul Stevens called the pledge “a patriotic exercise.”
As to the family’s state equal-protection claim, the Massachusetts high court said there did not appear to be any evidence in the record that the three Doe children had been punished, criticized, ostracized, or bullied for refusing to recite the words “under God” during the daily pledge exercise.
“There is nothing empirical or even anecdotal in the summary judgment record to support a claim that the children actually have been treated or perceived by others as ‘outsiders,’ ‘second-class citizens,’ or ‘unpatriotic,’” Ireland said.
In a concurring opinion, Justice Barbara A. Lenk said that she agreed that the Doe children had not suffered mistreatment in school.
But “should future plaintiffs demonstrate that the distinction created by the pledge as currently written has engendered bullying or differential treatment, I would leave open the possibility that the equal rights amendment might provide a remedy,” she said.
A version of this news article first appeared in The School Law Blog.