"One alarmist argument is that we are seeking to wipe all our references to God," Niose said. But he distinguished between "ceremonial" references by adults and children reciting the pledge daily for 13 years in public school.
He said that just hearing the phrase "one nation under God" stigmatizes an atheist child as less patriotic than his or her classmates who believe in God.
But Rassbach and an attorney for the school district argued that the disputed phrase is not a declaration of faith but a reference to the philosophy of people's fundamental rights coming from a higher power than the state.
"It is a legal term of art that dates back to the 13th century that talks about the limitation on the government's ability to take away rights," Rassbach said. "Atheists may be offended by it, but I don’t think they should be because it is a statement of political philosophy as opposed to a religious claim."
While some justices questioned whether a child could distinguish between political philosophy and their nation being "under God," they asked the school district attorney if any effort is made to let students know they don't have to say parts of the pledge they don't agree with or to say it at all.
Geoffrey Bok didn't answer directly but said he knew of no instances where a student was forced or coerced into saying the Pledge of Allegiance or its reference to God.
But Niose argued that the voluntary aspect of saying the pledge doesn't eliminate the discriminatory nature of the daily exercise.
"(Having to listen to the pledge) would give the appearance of endorsing the official pledge that everyone is saying, which is invidious to atheists," he said.
Asked if removing the reference to God would satisfy his clients, Niose indicated that would be better than the current practice. The original pledge was adopted by Congress in 1942 and did not contain the words "under God." The phrase was added in 1954.
But if that were not an option, he said, his clients would prefer the state "start from scratch" and find another more inclusive way to instill patriotism in students.
Last year, a Massachusetts judge found that the words "under God" in the pledge did not violate state law or the school's anti-discrimination policy. Judge S. Jane Haggerty found that including "under God" in a voluntary patriotic exercise does not "convert the exercise into a prayer." The family appealed the ruling.
The state's high court did not immediately rule Wednesday. Decisions typically are published several months after oral arguments.
Any ruling by the court would apply only to Massachusetts because the language of the Pledge of Allegiance is set by federal law.
Contributing: Associated Press
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