For the fourth time in the past decade, the Pledge of Allegiance will be before an appellate court on Wednesday, and the phrase "under God" is again at the heart of the challenge.
But the hearing before the Massachusetts Supreme Judicial Court has a different twist. Instead of a making a First Amendment religious violation claim, an anonymous atheist couple says the compulsory recitation of the pledge violates the state’s equal protection laws, reports the Christian Post.
"It makes us appear as second class citizens just because we believe something different from the majority," said Roy Speckhardt, executive director for the American Humanist Association, which filed the lawsuit.
The same anti-discrimination theory was used to successfully argue for same-sex marriage in Massachusetts, according to Religion News Service.
"In 2003, Massachusetts’ Supreme Judicial Court ruled 4-3 in favor of a same-sex couple seeking the right to marry under the state’s equal rights laws," RNS reported. "Their win led to similar successful challenges in other state courts — something that could happen here if judges rule for the plaintiffs."
RNS quoted Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty, which is arguing for Knights of Columbus, school children and parents who want to say the pledge at school, saying a similar ruling could spell problems for those defending the pledge.
“You would then see a rash of state court lawsuits challenging the pledge all over the country,” he said. “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.”
The Becket Fund's website summarizes a history of pledge cases beginning in 2000, in which courts have ruled reciting the pledge is constitutional under federal law. The Becket Fund has successfully argued that the pledge is statement of political philosophy not religious belief.
That same argument appeared to have won over Middlesex Superior Court Judge Jane Haggerty who ruled in June 2012 that the Pledge of Allegiance is not a religious practice, but “a voluntary patriotic exercise” that “teach(es) American history and civics.” Judge Haggerty also pointed out that the state allows students to choose not to recite the pledge.
“Members of the American Humanist Association have the right to remain silent if they want to, but they don’t have the right to silence everyone else,” said Becket Fund attorney Diana Verm, following the ruling.
The state's Supreme Judicial Court is hearing AHA's appeal of Haggerty's ruling.
“If the federal government decides to write a discriminatory pledge, the Massachusetts Constitution nevertheless protects children in the Commonwealth from the discrimination that would occur from daily recitation of the pledge in classrooms,” David Niose, attorney for the AHA, was quoted as saying in rifuture.org, a progressive political website in Rhode Island.