Yesterday, February 13 2012, the American Humanist Association argued in Massachusetts Superior Court that the state’s constitutional equal rights amendment should bar the practice of public schools conducting a daily flag-salute exercise that utilizes the version of the Pledge of Allegiance that includes the phrase “under God.”
This case, Jane Doe, et. als. v. Acton-Boxborough Regional School District et al, is unique and important because the state’s constitutional equal protection guarantees are the basis of the suit, not the Establishment Clause of the U.S. Constitution’s First Amendment. This same strategy could be replicated in other jurisdictions.
“The daily recitation in public schools of a pledge declaring that the nation is ‘under God’ is discriminatory toward atheists and Humanists,” said David Niose, president of the American Humanist Association and lead attorney for the plaintiffs in the case. “No child should go to school each day to have the class declare that her religious beliefs are wrong in an exercise that portrays her and her family as less patriotic than believers.”
Currently, Massachusetts law requires public school teachers to begin each day with a classroom recitation of the Pledge for the purpose of instilling patriotism and love of country. On behalf of the plaintiffs, the American Humanist Association’s Appignani Humanist Legal Center is asking for a court declaration that daily recitation of the “under God” version of the pledge is discriminatory. They also seek a court order that other, nondiscriminatory means should be used to instill patriotism.
The plaintiffs are not trying to discontinue patriotic exercises, but seek only to make those exercises inclusive and nondiscriminatory. The federal government added “under God” to its wording of the Pledge in 1954, at the height of the McCarthy era during the Cold War, whereas before that the Pledge simply declared that the nation was “one nation indivisible.” Plaintiffs are requesting that this inclusive version be used once again in Massachusetts, and/or that other means of instilling patriotism be used, such as reading about important historical figures and events. The original version of the Pledge, written in 1892, is completely secular and inclusive of all Americans.
The suit was originally filed in November 2010. In denying the defendants’ earlier motion to dismiss, the judge on May 25, 2011 wrote in part: “The daily affirmation to children that America is ‘one nation under God’ cannot be characterized as just a meaningless ceremony, for in the context of daily public school recitation (accompanying the salute of the national flag) such a statement becomes the equivalent of official State doctrine – far from meaningless…”
The court took the motions for summary judgment under advisement and did not indicate when a ruling could be expected.