National Edition

Lawyers, judges debate 'under God' phrase in Pledge of Allegiance

Published: Wednesday, Sept. 4 2013 5:15 p.m. MDT

Silver Crest Elementary students say the pledge of allegiance in Herriman, Utah, Monday, Nov. 5, 2012. The Supreme Court in Massachusetts has agreed to hear the latest legal challenge to reciting the Pledge of Allegiance's "under God" phrase in public schools.

Scott G Winterton, Deseret News

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The viewpoint of one party was missing Wednesday in a Massachusetts courtroom where attorneys and judges debated whether the phrase "under God" in the Pledge of Allegiance violated the equal rights of nonbelievers: Children who are asked to recite the pledge every morning.

Do children know they can opt out of saying all or part of the pledge? Do atheist students feel stigmatized as unpatriotic if they don't say "under God" when reciting the pledge? Would a 6-year-old understand the term "under God" as a philosophical statement and not a religious declaration?

Those questions were repeatedly asked by several of the seven justices on the Supreme Judicial Court who were hearing arguments in a case brought in 2010 by an atheist couple who sued their school district, claiming that reciting the pledge discriminated against their three children and violated the state's equal rights act.

But it wasn't until the end of the 35-minute hearing, which was streamed live over the Internet, that attorney Eric Rassbach explained why knowing a child's viewpoint may cause more problems than it would solve.

"If we make the standard, 'what does the average 6-year-old understand,' then there will be a lot of lawsuits under the equal protection statute because they are not going to understand a lot of things," said Rassbach, who represented families who want to recite the pledge in school. "There has to be some reliance upon parents and others to explain this is what we are doing."

Novel approach

The lawsuit between the anonymous atheist couple from Acton, Mass., and the Acton-Boxborough Regional School District represents the fourth time in the past decade that a dispute over reciting the Pledge of Allegiance in a public school has made it to the appellate court level.

In three of those cases, the courts found the tradition of saying the pledge did not violate the Constitution's Establishment Clause, which prohibits the government from endorsing a religion or religious belief. One case made it to the Supreme Court, which dismissed it on a technicality.

But this case takes a novel approach by claiming that daily recitation of the pledge by schoolchildren violates a state's equal rights statutes and avoiding any federal First Amendment claims. The same strategy was used in 2003, when a divided Massachusetts high court ruled in favor of a same-sex couple seeking the right to marry under the state’s equal rights laws, leading to successful equal rights challenges to state marriage statutes in other states.

And religious liberty advocates fear the same thing could happen to the tradition of reciting the Pledge of Allegiance.

“You would then see a rash of state court lawsuits challenging the pledge all over the country,” Rassbach, deputy general counsel for the Becket Fund for Religious Liberty, told Religion News Service last week. “A win for us would completely avoid that unnecessary harm. And it would affirm that it is not discriminatory to have the words ‘under God’ in the pledge.”

Voluntary exercise

David Niose, an attorney representing the family and the American Humanist Association, was peppered with questions from the justices on how far a ban on the pledge and public references to God should extend.

They noted the pledge is recited at sporting events, political meetings and other public gatherings. Chief Justice Roderick Ireland said officers in every courthouse in the state, including where Wednesday's hearing was held, mentioned "God save the Commonwealth of Massachusetts" in a daily recitation.

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