Massachusetts High Court Weighs Pledge of Allegiance in Schools

By Mark Walsh — September 05, 2013 3 min read
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A lawyer for a group of atheist and humanist families argued before the highest court of Massachusetts that a state law requiring public schools to lead daily recitations of the Pledge of Allegiance violates the state constitution.

“This case presents a classic equal-protection situation where an unpopular and wrongly vilified minority faces obvious official discrimination,” David A. Niose told the Massachusetts Supreme Judicial Court on Sept. 4.

A family identified as the Does, with parents and three school-aged children described as atheists and humanists, challenged the state law requiring the pledge in schools because of the inclusion of the words “under God.”

The children have not been 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 argues 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, as their legal brief puts it.

“By inserting ‘under God’ language into the pledge, we have a pledge where children, every morning, are pledging their national unity and loyalty in an indoctrinational format, in a way that validates God belief as truly patriotic and actually invalidates atheism as second-class citizenry at best and downright unpatriotic at worst,” Niose told the Massachusetts high court.

(The oral arguments in Doe v. Acton-Boxborough Regional School District are available in video form at the Web site of the Supreme Judicial Court, which is where I observed them.)

The Does, joined by the American Humanist Association, are challenging the Massachusetts law under the state constitution’s equal-protection guarantee, not as a violation of the U.S. Constitution’s prohibition on any government establishment of religion or its guarantee of free exercise of religion.

The U.S. Supreme Court famously took up a case involving an establishment challenge to school-led recitations of the pledge. But in Elk Grove Unified School District v. Newdow, the court held in 2004 that an atheist father who had challenged the practice in his daughter’s school lacked standing because he did not have custody of the girl.

That atheist, Michael A. Newdow, organized a new challenge that included another family, and that suit led to a 2010 decision by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that school recitations of the pledge were predominantly patriotic exercises and did not violate the establishment clause.

Later that year, the U.S. Court of Appeals for the 1st Circuit, in Boston, upheld a New Hampshire law that requires schools to set aside time for teachers to lead the pledge.

In the Doe case, a Massachusetts trial court held that school recitations of the pledge did not violate the rights of the atheist and humanist children under the state’s Equal Rights Amendment.

During Tuesday’s arguments before the state high court, the lawyer for the Acton-Boxborough district said that the pledge is not inherently religious and the recitations of it do not create a disadvantaged class of religious-minority students.

“There is no religion bias in the statute,” said Geoffrey R. Bok, adding that the pledge is “not an affirmation. It’s a statement of our political philosophy.”

The school district was supported at oral argument by Eric C. Rassbach of the Becket Fund for Religious Libery, who argued that the pledge was meant to be designed to be a statement of political philosophy and loyalty, not a religious creed or prayer. Congress made that clear when it added “under God” to the pledge in 1954, Rassbach’s brief says. He quoted a congressional report from that time that “the inclusion of God in our pledge ... would serve to deny the atheistic and materialistic concepts of communism with its attendant subservience of the individual.”

“An atheist may be offended by that idea but I don’t think they should be,” Rassbach said during the arguments. “It’s a statement of political philosophy rather than a religious claim.”

“Do you think many 8- to 10-year-olds understand that when they say it?” Justice Ralph D. Gants wondered.

The members of the state high court asked questions of both sides during the arguments, which lasted about 36 minutes.

A version of this news article first appeared in The School Law Blog.