Two atheist parents in Massachusetts are the latest to discover that excising the words "under God" from the Pledge of Allegiance might require a power higher than the state Supreme Judicial Court, which on Friday unanimously turned down their request.
An atheist family, joined by the American Humanist Association, claimed a Massachusetts statue requiring daily recitation of the pledge using the phrase "Under God" — added by Congress in 1954 — violated equal protection rights within the state constitution as well as the state's nondiscrimination laws. Other legal challenges to "under God" have focused on the First Amendment's "establishment clause," and have been equally unsuccessful.
"Reciting the pledge is a voluntary patriotic exercise, but it is not a litmus test for defining who is or is not patriotic. The schools confer no 'privilege' or 'advantage' of patriotism within the meaning of the statute to those who recite the pledge in its entirety," Chief Justice Roderick L. Ireland wrote in the opinion. (The first African-American on the state panel, Ireland announced in March that he will retire in July, a few months before he reaches the mandatory retirement age of 70.)
Referencing the anti-discrimination statute, Ireland added, "Here there is no discriminatory classification for purposes of art. 106 — no differing treatment of any class or classes of students based on their sex, race, color, creed, or national origin. All students are treated alike."
The case went to the Supreme Judicial Court following a ruling by Middlesex Superior Court Judge Jane Haggerty in favor of the pledge. The American Humanist Association appealed to Massachusetts’ highest court, where oral arguments were heard Sept. 4, 2013.
"Today the (Massachusetts) Court affirmed what should have been obvious — 'God' is not a dirty word," Eric Rassbach, deputy general counsel at the Becket Fund for Religious Liberty, said in a statement.
Rassbach, who also argued the case in Boston, asserted the use of the phrase "isn't discriminatory either. The words 'under God' are a reminder to our children that government doesn’t give us our rights and it can’t take them away either. Preserving the pledge protects the rights of every American."
"We are very disappointed by the court’s ruling," plaintiffs' attorney David Niose, American Humanist Association legal director, said in a statement. "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."
The humanist group has filed a similar challenge in the state of New Jersey, and vows to pursue claims in other states, despite the Massachusetts defeat.
Dan and Ingrid Joyce of Acton, Massachusetts, who along with their children were parties in the case defending the 1954 pledge language, said, "We are very happy with the court’s decision today. We believe that the pledge represents all Americans and we think the court’s decision respects the wonderful diversity we have in our society."
The nondiscrimination statute gambit, which was unsuccessful in this case, worked for same-sex marriage advocates in Massachusetts. Ten years ago, they won the right to marry in the Bay State based on an equal rights claim, which led some observers to wonder if pledge critics would find similar success this time.
"This would have been a groundbreaking case for atheists and humanists, but the court’s decision today simply reaffirms the status quo," Edwina Rogers of the Secular Coalition for America said in a statement. "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."
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