This morning, the Massachusetts Supreme Judicial Court finally issued its decision in Doe v. Acton-Boxborough Regional School District, the case that would decide the fate of the Pledge of Allegiance in the state. Unfortunately, they ruled against the American Humanist Association, saying “the recitation of the pledge, which is entirely voluntary, violates neither the Constitution nor the statute.”

So the Pledge will remain in place for the foreseeable future.

…

It might help to have some background about the case:

On September 4, the Massachusetts Supreme Judicial Court heard a case regarding the daily ritual of reciting the Pledge of Allegiance in the state’s public schools.

Back in 2010, the American Humanist Association’s Appignani Humanist Legal Center and Dave Niose (a lawyer and author of Nonbeliever Nation) filed a lawsuit on behalf of a family whose children attended schools in the Acton-Boxborough School District (in Massachusetts). The issue was that the children — ages 13, 11, and 9 — had to say “Under God” in the Pledge of Allegiance and that went against their family’s beliefs. (The names of the family members have been kept anonymous, presumably so that they’re not directly harassed by Christians.)

What made this case unique was that Niose wasn’t arguing that the Pledge was unconstitutional because it “established religion” like Michael Newdow argued over a decade ago.

Instead, Niose fought it under the “Equal Protection” part of the Constitution — that is, he argued that the children were being discriminated against:

The Plaintiffs have suffered and continue to suffer actual harm as a direct and proximate result of the Defendants’ actions of conducting a regular classroom Pledge recitation that includes the affirmation that the United States is “under God,” thereby having their religious beliefs publicly rejected, having their patriotism and the patriotism of their religious class brought into question, and being portrayed as outsiders and second-class citizens.

In June of 2012, a judge ruled against the family, saying that this wasn’t really a case of discrimination:

… I can only conclude that the insertion of “under God” into the Pledge has not converted it from a political exercise… into a prayer… … Moreover, [the laws don’t compel] the [children] to participate; they are free to refrain from speaking any part of the Pledge… … Accordingly, the Pledge is not a religious exercise, and, in that context, the daily recitation of “under God” does not constitute an affirmation of a “religious truth.”

Then… what does it convey?

Anyway, the AHA appealed the judge’s ruling and they got word last October that the state’s Supreme Judicial Court had accepted their case for review. Instead of having the case heard by another lower court, the highest court in the state would tackle the case directly:

“Public schools are defining patriotism and loyalty on a daily basis by exalting one religious group and stigmatizing humanists and other non-theists. Of course that’s discrimination,” said American Humanist Association Executive Director Roy Speckhardt. “We feel confident that a fair hearing will result in a finding that the state law requiring this discriminatory practice violates the state’s equal rights amendment.”

The Center for Inquiry filed an amicus brief, written by CEO Ron Lindsay, in defense of the Humanist parents and their kids:

In its brief, CFI makes two principal points. First, assuming the Pledge is an important patriotic exercise — as defendants maintain — the students are being denied the opportunity to participate in this important exercise solely because they are unwilling to affirm belief in God. This is not a legitimate reason for their exclusion, just as there is no legitimate reason for excluding persons from testifying or serving as public officials because they are unwilling to affirm belief in God. Second, any justification for requiring students to say this is one nation “under God” must be subject to strict scrutiny given the long history of legal discrimination against atheists in the United States.

CFI also made this worthwhile point in its brief:

If the purpose of the Pledge is to instill patriotism, this task plainly can be accomplished without requiring students also to affirm belief in a deity. To hold otherwise would be to rule that one must be a monotheist to be a true patriot and participate meaningfully in a patriotic exercise. Such a ruling would be directly contrary to the equal protection guarantees of the Massachusetts Constitution, which provide that one’s standing in the political community is not dependent on one’s religion.

Even though the decision should have been released a while ago, I speculated last month that the delay was good news for our side, because the justices may have wanted to soften the blow by issuing their decision at the end of the school year.

Turns out I was wrong about that.

Here’s what the court said today:

The plaintiffs do not appear to be claiming that their children have been punished, bullied, criticized, ostracized, or otherwise mistreated by anyone as a result of their decision to decline to recite some (or all) of the pledge. There is no evidence in the summary judgment record that the plaintiffs’ children have in fact been treated by school administrators, teachers, staff, fellow students, or anyone else any differently from other children because of their religious beliefs, or because of how they participate in the pledge. Nor is there any evidence that they have in fact been perceived any differently for those reasons. The plaintiffs do identify what they claim is a poor public perception of atheists in general, and they maintain that their children’s failure to recite the pledge in its entirety may “possibly” lead to “unwanted attention, criticism, and potential bullying.” However, there is nothing in the record indicating that this has in fact happened to the plaintiffs’ children or to any other Massachusetts schoolchildren because of their decision to exercise their right not to recite the words “under God” in the pledge. In short, 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.”

Chief Justice Roderick L. Ireland also offered this hypothetical, saying that if they were to strike down the Pledge because it violated some students’ rights, that opened the door to other lawsuits as well:

If we were to accept the plaintiffs’ theory, numerous programs and activities that are otherwise constitutional would be scuttled under the rubric of equal protection. For example… we upheld a program adopted by the town of Falmouth school committee that made condoms available to students in the junior and senior high schools in Falmouth. We rejected the claims of parents and students that the program violated their constitutional rights to familial privacy and parental control of their children’s education and upbringing, as well as their right to the free exercise of religion… If we were to accept the plaintiffs’ equal protection theory in this case, the Falmouth program would be vulnerable for essentially the same reason: the plaintiffs in that case could claim that the implementation of the program in the schools — the dispensing of condoms by the school nurse and the presence of condom vending machines in the restrooms — sends a daily message to them that the school accepts and even promotes values that do not comport with their religious views, and therefore publicly renders them “outsiders” based on their religious beliefs. The school condom availability program, which passes muster under the religion provisions of the Federal and State Constitutions, would be struck down…

One of the justices (Barbara Lenk), concurring with the majority decision, admitted that the presence of “Under God” still excluded atheists. She wasn’t, however, convinced the plaintiffs were bullied or treated different because of that, but she left the door open for future cases in which that was indeed the case:

… Our opinion rightly notes that recitation of the Pledge, in whole or in part, is entirely voluntary. But the logical implication of the phrase “under God” is not diminished simply because children need not say those words aloud. A reference to a supreme being, by its very nature, distinguishes between those who believe such a being exists and those whose beliefs are otherwise. This distinction creates a classification, one that is based on religion. Theists are acknowledged in the text of the pledge, whereas nontheists like the plaintiffs are excluded from that text, and are, therefore, implicitly differentiated. To be sure, as our holding makes clear, the plaintiffs here did not successfully allege that their children receive negative treatment because they opt not to recite the words “under God,” or that the inclusion of that phrase in the pledge has occasioned “the creation of second-class citizens.” … … 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.

Keep in mind that, because this case is all about a state law regarding the recitation of the Pledge, this is the end of the line. Not that it would’ve worked, but the Appignani Humanist Legal Center won’t be able to appeal this to the U.S. Supreme Court.

Also worth noting: The AHA has a similar case still pending in New Jersey.

***Update***: The Secular Coalition for American issued this response (via email):

Edwina Rogers, Executive Director of the Secular Coalition for America said the outcome was a disappointment, because of its potential to assert the rights of nonbelievers via Equal Protection and nondiscrimination. … “This would have been a groundbreaking case for atheists and humanists, but the Court’s decision today simply reaffirms the status quo,” Rogers said. “Today’s decision tells our children that love for our country must be linked to a god belief, and that in and of itself is discriminatory.”

***Update***: The American Humanist Association has also weighed in (via email):

“We are very disappointed by the court’s ruling,” said the plaintiffs’ attorney David Niose, legal director for the American Humanist Association. “No child should go to public school every day, from kindergarten to grade 12, and be faced with an exercise that portrays his or her religious group as less patriotic.” … “We continue to strive for the rights of Americans who are good without a god, working in the courts of law and the courts of public opinion. With the growing numbers of humanists and atheists across the country, it’s only a matter of time before we restore the Pledge of Allegiance to the more inclusive ‘one nation indivisible,’” said American Humanist Association Executive Director Roy Speckhardt.

(Portions of this post have been published before.)



