BU Law Professor: Pledge Case Before Supreme Court Is ‘Unique’
It could be awhile before any decision is made about striking “under God” from the pledge.
A Massachusetts family is challenging the use of the phrase “under God” in the recital of the Pledge of Allegiance—a morning tradition that has been carried out in classrooms across the country for decades—in the state’s highest court.
But law experts say the case could hit some roadblocks and might not end up in the plaintiff’s favor.
“I think the plaintiff’s challenge is probably a long shot,” says Boston University Law Professor Jay Wexler. “[The court] might be very reluctant to strike down the Pledge, regardless of what the theory is. They have a long road of travel ahead to get them to strike the term ‘under God.’”
In June 2012, a superior court judge ruled against an unidentified Acton family’s request to remove the language from recitations in Massachusetts public schools, when they sued the Acton-Boxborough School District, claiming the phrase did not violate the children’s rights as atheists. The suit, Doe v. Acton-Boxborough Regional School District, was filed in November 2010 by the Appignani Humanist Legal Center on behalf of three public school students and their parents. Unappeased by the decision, the family decided to bring the case to the next level, filing an appeal, and landing it in front of the Supreme Judicial Court.
On Wednesday, justices from the court heard the family’s plea to omit the words and listened on as the defendants argued that the request had no grounds for removal, and that students can opt out of reciting the pledge altogether.
Although the family—who remains anonymous, but is supported by the American Humanist Association—acknowledges that their children can simply dismiss the two words when saying the Pledge, they still believe the inclusion of the phrase “under God” violates the equal protection clause of the Massachusetts Constitution, and maintains that is discriminatory in nature. “Patriotism has nothing to do with religion, but that’s the message Massachusetts is sending by mandating a daily, teacher-led, school-sponsored exercise that declares the nation to be ‘under God,’” said Roy Speckhardt, executive director of the American Humanist Association, in a statement. “The fact that the Pledge exercise is intended specifically for the purpose of instilling patriotism in children makes the religious discrimination even more egregious. Any daily patriotic exercise should be inclusive of all Massachusetts children, without portraying believers as being better patriots than nonbelievers.”
Wexler said the manner in which the plaintiffs are approaching the omission of the terminology is “unique” in that it has never been done before. “It poses a kind of challenge to the Pledge that hasn’t been tried,” says Wexler. “This is being based on an equality principal.”
Previous cases have been argued in federal court systems with claims that the words are “unconstitutional” and violate the concept of separating church and state—something Wexler agrees with—however, the family taking the Acton-Boxborough School District to court is employing a different set of tactics, using the discrimination argument, ignoring the traditional First Amendment Establishment Clause arguments.
According to the family’s attorney, David Niose, the flag salute defines patriotism, and therefore, by using the words “under God,” assumes that anyone who opts out of that portion of the pledge essentially defines non-believers, or atheists, as “less patriotic.”
“It’s a difficult fit because usually it involves giving benefit to one group over another group. Here the argument is that the government is, through its messages, burdening one group rather than the other group,” says Wexler.
While personally he is sympathetic to the challenges being brought by the Acton family, and he “understands why they are choosing this route,” Wexler says the case is difficult, and it could be months until a decision is reached. In the meantime, lawyers of a family trying to fight to keep the words in the pledge fear that if the a Supreme Court favors the plaintiff’s arguments, it could set off a national trend, with similar suits being brought to courts.
“They want this to be a foundation for a national campaign to eliminate ‘The Pledge,’” said Eric Rassbach, who represents an Acton family opposed to the idea, following the brief court session on Wednesday. “If the Pledge is struck down in Massachusetts, there’ll be a rash of copycat lawsuits across the nation.”
Wexler agreed, saying it would set a precedent in Massachusetts, and others might find it persuasive. “[I’m sure] the hope is that would spark a bit of a litigation movement that might end up in other states,” he says.