by Gregory Tomlin, posted Friday, September 13, 2013 (11 years ago)
BOSTON (BP) -- A case challenging the words "under God" in the Pledge of Allegiance is being weighed by the Supreme Judicial Court of Massachusetts where state law requires schoolchildren to recite the pledge daily as a patriotic exercise.
The case before the court stems from a lawsuit filed in 2010 by the American Humanist Association on behalf of atheist parents of schoolchildren in the Acton-Boxborough School District.
Attorneys for the humanist plaintiffs avoided claiming that the pledge represents a state establishment of religion, as most of the pledge cases have in the past. Instead, attorneys argued in Doe v. Acton-Boxborough Regional School District that reciting the pledge, which requires atheists to say the words "under God," is discriminatory and violates the state's equal protection laws.
A state Superior Court judge ruled in 2012 that the words "under God" did not violate the law, but reflected a political philosophy evident in the history of the pledge and state law itself. The judge also stated reciting the pledge is not a religious exercise.
But David Niose, attorney for the atheist families, argued before the Supreme Judicial Court Sept. 4 that the case "presents a classic equal protection situation where an unpopular and wrongly vilified minority faces obvious official discrimination."
"The trial court failed to apply strict scrutiny despite constitutional and statutory enumeration requiring it," Niose told the court. "[The pledge] affirms very unambiguously that the nation is 'one nation, under God.' Had the 'under God' words not been in there, it would have been 'one nation, indivisible.' But 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 indoctrination format which validates religious, God-belief as truly patriotic."
The phrase "under God" creates two classifications of citizens, Niose argued, because it "actually invalidates atheism, as second-class citizenry at best and downright unpatriotic at worst." Therefore, Niose said, the practice violates the state's equal protection and anti-discrimination laws.
Niose's equal protection and discrimination claims make the pledge case one of the first of its kind in the nation. But it is a strategy familiar to many activists in the state.
The use of equal protection as a legal strategy for social change is the same strategy attorneys used in the 2003 landmark same-sex marriage case before the Supreme Judicial Court. In its ruling in that case, issued in 2004, the court said laws prohibiting same-sex marriage are "incompatible with the constitutional principles of respect for individual autonomy and equality under law."
The prospect that the court may follow a similar pattern with this case is not lost on groups like the Becket Fund for Religious Liberty. Eric Rassback, deputy general counsel for the group, told Religion News Service a ruling striking the words "under God" would result in similar challenges in other courts.
"You would then see a rash of state court lawsuits challenging the pledge all over the country ... a win for us would completely avoid that unnecessary harm. And it would affirm that it is not discriminatory to have the words 'under God' in the pledge," Rassback told RNS. Read More
