You would then see a rash of state court lawsuits challenging the pledge all over the country. —Eric Rassbach
The viewpoint of one party was missing Wednesday in a Massachusetts courtroom where attorneys and judges debated whether the phrase "under God" in the Pledge of Allegiance violated the equal rights of nonbelievers: Children who are asked to recite the pledge every morning.
Do children know they can opt out of saying all or part of the pledge? Do atheist students feel stigmatized as unpatriotic if they don't say "under God" when reciting the pledge? Would a 6-year-old understand the term "under God" as a philosophical statement and not a religious declaration?
Those questions were repeatedly asked by several of the seven justices on the Supreme Judicial Court who were hearing arguments in a case brought in 2010 by an atheist couple who sued their school district, claiming that reciting the pledge discriminated against their three children and violated the state's equal rights act.
But it wasn't until the end of the 35-minute hearing, which was streamed live over the Internet, that attorney Eric Rassbach explained why knowing a child's viewpoint may cause more problems than it would solve.
"If we make the standard, 'what does the average 6-year-old understand,' then there will be a lot of lawsuits under the equal protection statute because they are not going to understand a lot of things," said Rassbach, who represented families who want to recite the pledge in school. "There has to be some reliance upon parents and others to explain this is what we are doing."
The lawsuit between the anonymous atheist couple from Acton, Mass., and the Acton-Boxborough Regional School District represents the fourth time in the past decade that a dispute over reciting the Pledge of Allegiance in a public school has made it to the appellate court level.
In three of those cases, the courts found the tradition of saying the pledge did not violate the Constitution's Establishment Clause, which prohibits the government from endorsing a religion or religious belief. One case made it to the Supreme Court, which dismissed it on a technicality.
But this case takes a novel approach by claiming that daily recitation of the pledge by schoolchildren violates a state's equal rights statutes and avoiding any federal First Amendment claims. The same strategy was used in 2003, when a divided Massachusetts high court ruled in favor of a same-sex couple seeking the right to marry under the state’s equal rights laws, leading to successful equal rights challenges to state marriage statutes in other states.
And religious liberty advocates fear the same thing could happen to the tradition of reciting the Pledge of Allegiance.
“You would then see a rash of state court lawsuits challenging the pledge all over the country,” Rassbach, deputy general counsel for the Becket Fund for Religious Liberty, told Religion News Service last week. “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.”
David Niose, an attorney representing the family and the American Humanist Association, was peppered with questions from the justices on how far a ban on the pledge and public references to God should extend.
They noted the pledge is recited at sporting events, political meetings and other public gatherings. Chief Justice Roderick Ireland said officers in every courthouse in the state, including where Wednesday's hearing was held, mentioned "God save the Commonwealth of Massachusetts" in a daily recitation.
"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