On Wednesday, September 4th, oral arguments begin in the Massachusetts Supreme Court in the case of Doe v. Acton-Boxborough Regional School District. The case is being brought on behalf of three Massachusetts public school students and their parents by the American Humanist Association’s Appignani Humanist Legal Center. The plaintiffs are members of the AHA. The suit seeks to stop the use of the Pledge of Allegiance that uses the phrase “Under God”, added in 1954, using the equal protection clause of the Massachusetts constitution.
The students want to be able to participate in school patriotic ceremonies that do not discriminate against nonbelievers by asserting that America is a nation “under God.” The AHA has asked the court to require that schools recite the original, secular version of the Pledge if they choose to recite it. Congress added the phrase “under God” to the Pledge in 1954, at the height of the McCarthyist Red Scare, at the urging of religious special interest groups. These groups, conflating atheism and communism, capitalized on the dominant political hysteria to convince the government to associate religion with patriotism by amending the Pledge. The original version of the Pledge, written in 1892 and robust enough to get the nation through such difficult times as the First World War and the Great Depression, is completely secular and inclusive of all Americans, containing no divisive reference to God.
Unlike previous cases relating to this issue, the AHA’s lawsuit does not allege that the “under God” version of the Pledge violates the Establishment Clause of the federal Constitution, which guarantees a separation of church and state. Instead, the court agreed that daily recitation of the religious version of the pledge in public school classrooms discriminates against humanist and other atheist students in violation of the equal protection clause of the Massachusetts Constitution, which prohibits state discrimination on the basis of religious views.
The argument is the students are being forced to recite “Under God” which “discriminates against atheists-humanists by instilling and defining patriotism according to God-belief“.
This is an interesting take on the pledge issue by using the state constitution and claiming an equal protection argument. It will be interesting how this turns out.
The god version of the Pledge of Allegiance was adopted in 1954 as a response to communism during the bad period for this country called “McCarthyism”.
I wrote about the history of “Under God”, in the pledge, back in 2005:
In a sense you can see that happening in this country back in the 1950’s. There was the hysterical fear of communism which lead many to drape themselves in God and religion for solace but that also lead to political leaders, ever the opportunists, to use God as a political statement of their own loyalty. The USSR, at least on paper claimed to be a democratic republic and with a secular form of government, so many political leaders needed something to contrast the “good” USA with the “evil” USSR.
So the religious fervor that enveloped the country in the 1950’s was a direct result of the fear of communism and politicians used that religious revival to pass the law that changed the pledge in 1954. They then could go back to their districts and “prove” how loyal they were by keeping that “godless” communism out of the schools.
There is a previous US Supreme Court case they may stymie the AHA’s case. West Virginia State Board of Education v. Barnette was decided in 1942:
In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that salutes of the type mandated by the West Virginia State Board of Education were forms of utterance and thus were a means of communicating ideas. “Compulsory unification of opinion,” the Court held, was doomed to failure and was antithetical to the values set forth in the First Amendment. Writing for the majority, Justice Jackson eloquently stated: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” To underscore its decision, the Supreme Court announced it on Flag Day.
The AHA is only trying to get the words “Under God” removed from the pledge which is a good thing, but children still can’t be forced to recite the pledge – even though we know they are forced to do it all the time.