Kathleen Hopkins

@Khopkinsapp

FREEHOLD – A Monmouth County judge is poised to soon decide a hot-button issue: whether a national atheist group can move forward with its challenge to the use of "under God'' in the Pledge of Allegiance.

Superior Court Judge David Bauman said he will decide shortly whether to grant the Matawan-Aberdeen Regional School District's request to dismiss a lawsuit filed against it by the American Humanist Association. The Washington-D.C.-based association is seeking to bar use of the words "under God'' in the daily recitation of the Pledge of Allegiance by students in pre-kindergarten-through-12th-grade school district.

Bauman, whose nomination to the state Supreme Court expired before being taken up by the Legislature, heard arguments from the school district and the American Humanist Association on Wednesday.

Joining the school district in its effort to have the lawsuit thrown out were lawyers for the Knights of Columbus, the American Legion, and a South Jersey high school student represented by the Becket Fund, a Washington, D.C.-group that promotes religious freedom.

The American Humanist Association, which works to protect the rights of atheists and other nonreligious groups, filed the lawsuit against the school district in April on behalf of a family with a child in the school system.

Matawan-Aberdeen school district sued over "under God'' in pledge

The lawsuit claims that the practice of acknowledging God in the pledge of allegiance discriminates against atheists, in violation of New Jersey's constitution.

"Our position is, the words 'under God' doesn't discriminate against anyone,'' said Eric Rassbach, deputy general counsel for the Becket Fund.

The Becket Fund is representing Samantha Jones, a senior at Highland Regional High School in Blackwood, Camden County, who also is asking for dismissal of the lawsuit.

"This is about our freedom of Americans,'' Jones said outside the courthouse Wednesday. "Even since I was little, I remember taking the pledge all the time. ...It does acknowledge our rights don't come from the government but rather from a higher power.''

Meanwhile the family and the child on whose behalf the lawsuit has been filed have remained anonymous.

David B. Rubin, attorney for the Matawan-Aberdeen school district, said he is aware of the identity of the family and has confirmed the child is a student in the district, but he said he is under court order not to disclose their identities.

Rubin said he is seeking to have the lawsuit dismissed on several grounds, the first of which is the fact that New Jersey law requires daily recitation of the pledge of allegiance in the state's schools. Despite that, individual students are not required to participate in the pledge, he said.

For that reason, Rubin said, the plaintiff's claim of a civil rights violation is unfounded because there is no differential treatment of anyone by the government.

"There's not been a requirement or a prohibition from doing anything,'' Rubin said.

David Niose, the attorney representing the Humanist Association, said that even though students are not required to participate in the pledge, inclusion of the words "under God'' makes it divisive.

"It paints one group as quintessential patriots and the other group as second-class citizens,'' he said.

He said the pledge differs from other school activities that some might find objectionable in that it is an exercise that is performed daily by students in pre-kindergarten through 12th grade.

The Humanist Society brought a similar case earlier this year in Massachusetts, but that state's highest court ruled recitation of the pledge is not discriminatory because it is voluntary. Niose told Bauman on Wednesday that he thought the Massachusetts court was "simply wrong.''

Meawnhile, Rubin is questioning whether a local agency can be sued for following a state mandate. He said all of New Jersey's approximately 590 school districts are required to start the school day with the pledge of allegiance.

"Can a local government agency be sued for violating someone's constitutional right when all they're doing is following a state mandate that they have no discretion to disobey?'' Rubin asked.

That, he said, is a legal issued that has not been decided by New Jersey courts.

Meanwhile, Rubin said federal courts have not recognized the pledge of allegiance as a religious exercise, even though a reference to God is in it, Rubin said.

"It's simply a recognition of the undeniable, historical fact that religion played an important role in the formation of this country and the development of our government institutions,'' he said.

The Pledge of Allegiance was written in 1892, but the words "under God'' were not added to it until 1954.

Kathleen Hopkins: 732- 643-4202; Khopkins@app.com