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.



