A couple of months ago, I posted about a family from Boston that was suing to get “Under God” out of the Pledge of Allegiance.

When Michael Newdow made headlines for taking his case to the Supreme Court a decade ago, his argument was that the Pledge violated the Establishment Clause of the First Amendment because it promoted religion. Essentially, he argued for separation of church and state. (The Supreme Court ultimately said he didn’t have proper “standing” and threw the case out instead of ruling on its merits.)

The family in the more recent case tried a different approach. They said the Acton-Boxborough School District was discriminating against atheist children when they said the Pledge. (Legally speaking, they were trying to use the Massachusetts Constitution’s guarantee of “equal protection” to their favor.)

My initial reaction wasn’t optimistic because it’s very difficult to pinpoint how atheists are purposely discriminated against by a district that makes schools say the Pledge.

Now, a judge has ruled against the family (PDF):

… 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.”

The American Humanist Association, which filed the lawsuit on behalf of the Boston family, says they will appeal:

“No child should go to school every day, from kindergarten to grade twelve, to be faced with an exercise that defines patriotism according to religious belief,” said the plaintiffs’ attorney David Niose, who is also AHA president. “If conducting a daily classroom exercise that marginalizes one religious group while exalting another does not violate basic principles of equal rights and nondiscrimination, then I don’t know what does.” … Niose pointed out that the Pledge exercise is a daily indoctrination, not just a harmless ceremony. “The flag-salute is how we define patriotism for children on a daily basis,” he said. “When we define patriotism with a religious truth claim — that the nation is in fact under a god — we define nonbelievers as less patriotic.”

I have a hard time seeing how a higher court will overturn this ruling, but I appreciate the AHA’s effort to try and right this wrong.

Having no legal expertise whatsoever, it seems like the most likely route to challenge “Under God” and succeed would be to have a plaintiff who has actually been discriminated against (in some tangible way) because they had to say the Pledge. But that’s not easy to find. So the fight continues…



