“There is almost no case law defining religious discrimination under the Equal Rights Amendment. In fact, there’s really none,” said David Niose, the family’s attorney and president of the Humanist Association. “It’s high time that this type of discrimination be adjudicated.”

A Middlesex Superior Court judge in June rejected the lawsuit, which was brought by an atheist couple and their children against the Acton-Boxborough Regional School District. The family, supported by the American Humanist Association, challenged the use of the words “under God” in the Pledge of Allegiance as a violation of the Commonwealth’s Equal Rights Amendment.

The Massachusetts high court this week agreed to review a case contending that required daily recitation of the words “under God” in the Pledge of Allegiance at public schools is a violation of state equal rights law.


Another couple with two children intervened during litigation of the original case to defend the “under God” phrasing, along with the Catholic organization the Knights of Columbus, and the Becket Fund for Religious Liberty.

Recognizing the fundamental issues of religious freedom and discrimination that are at the heart of the case, the defendants — though they prevailed in the first case — supported Niose’s request that the state’s high court bypass an intermediate appeals court to hear the lawsuit.

“This is an important case because it has to do with whether people with really different world views can live together in the country without trying to sue to silence the other one,” said Eric Rassbach, deputy general counsel for the Becket Fund.

At all public schools, according to Massachusetts General Law, teachers are required to lead a group recitation of the Pledge of Allegiance before the first class of each day. Niose said this is an effort to instill patriotism, and the idea that the United States is a nation created “under God” implies that students who do not believe in that God are less patriotic.


“We want people to realize it’s not un-American to ask your school and to ask your state to conduct a patriotic exercise without denigrating your religious class,” he said.

Stephen E. Mills, the superintendent of the Acton-Boxborough Regional School District, could not be reached for comment Friday, but court documents show he has previously affirmed that students and teachers can freely opt out of the recitation.

“I believe very strongly in accommodating and not discriminating against any student based on their or their family’s religious beliefs,” Mills wrote in a superior court affidavit. “To that end, participation in the school district’s regular administration of the Pledge of Allegiance is totally voluntary.”

Niose, however, said opt-out ability does not prevent religious discrimination.

“Its hardly a consolation that they get to sit down and watch while their class conducts this disparaging exercise,” he said.

A number of past cases have examined the constitutionality of the words “under God,” which were added to the pledge in 1954, and courts have ultimately deemed the pledge fair. But those arguments were based on the First Amendment, not a state law. Niose said if the plaintiffs win their case, it would not directly change federal policy.

“We’re not overturning the federal statute,” he said. “We’re just saying that the Massachusetts statute which requires daily recitation of this pledge is unconstitutional.”

Rassbach, however, said the SJC’s ruling could have national implications because the text of the Pledge of Allegiance is outlined in the federal Flag Code.


Zachary T. Sampson can be reached at zachary.sampson@globe.com.