A Pledge of Allegiance Battle Brews in Massachusetts

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All students are free not to say them, but plaintiffs in a state case argue that the words "under God" deny non-religious students their "right of inclusion" in a patriotic ceremony.

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Reuters

Do the children of non-theist parents, or non-theist children, suffer religious discrimination when the Pledge of Allegiance is recited every morning in public school? Not according to the federal judiciary, which has rejected constitutional challenges to the inclusion of "under God" in the pledge. The First Circuit Court of Appeals recently ruled that the pledge does not violate the Fourteenth Amendment equality rights of non-theists (or First Amendment prohibitions on establishing religion and guarantees of free exercise).

So the American Humanist Association has mounted a state constitutional challenge to the pledge in Massachusetts state court. On behalf of an anonymous Godless couple (Jane and John Doe) and their three children, the AHA argues that mentioning God in the pledge violates guarantees of religious equality in the state constitution. 

Federal constitutional rights, defined by federal courts, provide a floor, not a ceiling for the states, and the Supreme Judicial Court of Massachusetts has taken an expansive view of individual rights, as the AHA stresses: "The Massachusetts constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution," the court observed in its landmark decision recognizing same sex marriage rights. The AHA plaintiffs have survived a motion to dismiss in Superior Court and are awaiting a ruling on motions for summary judgment.

They have an arguable but not an obvious case. The pledge is voluntary, pursuant to a 1942 Supreme Court decision, West Virginia v Barnette, confirming the rights of Jehovah's Witnesses not to pledge (and reversing a contrary ruling on the pledge that had been handed down by the court only three years earlier). Barnette offered an eloquent defense of First Amendment freedoms of thought and conscience, holding 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 action their faith therein." Thanks to Barnette, we are all free not to pledge allegiance, for any reason. Massachusetts law requires the display of flags in public schools and daily group recitations of the pledge, but an advisory opinion on the law by the state's highest court made clear that neither students nor teachers may be required to participate in pledge ceremonies.

So the plaintiffs acknowledge that they already enjoy a right of exclusion from the pledge, but they seek a right of "inclusion," which they assert is effectively denied to non-theist children by the reference to God. Non-theists may choose to recite the pledge and skip the "under God" phrase, but merely by participating in the pledge ceremony, plaintiffs argue, they would "validate prejudice against their religious class."

At most this is a subtle prejudice; not many people outside the non-theist community (and not everyone within it) will take this claim of discrimination seriously, much less consider it actionable. Plaintiffs point out that if the pledge included the phrase "under Jesus" instead of "under God," they would not be alone in challenging it, but this comparison of official sectarianism to official non-sectarianism will resonate only with non-theists. In the popular view -- shared by Justice Scalia -- there is virtually no comparison between "under Jesus" and "under God." Prohibitions on state established religion tend to be construed as prohibitions on state sectarianism: non-sectarian "under God" talk has long been considered a constitutionally harmless form of ceremonial deism.

Still, plaintiffs have a chance of prevailing in the Massachusetts courts, and if they do, the Republic won't fall (at least it won't fall because the words "under God" have been deleted from the pledge in Massachusetts public schools). But while I sympathize, to some extent, with objections to the deist pledge, I wonder about the wisdom of this lawsuit. What would a win accomplish? It could inspire a campaign to pass an "under God" amendment to the state constitution. And win or lose, this plea for "inclusion" exaggerates the importance of the pledge and pays homage to jingoism.

"Saluting the flag is a serious endeavor, taught from the earliest school age and drawing attention to cherished principles of freedom, justice, and equality," plaintiffs assert. Really? Saluting the flag always seemed more like a rote endeavor to me, drawing attention away from principles of individual liberty. As plaintiffs assert, choosing not to pledge allegiance, by reciting en masse a national loyalty oath, requires resiliency of children who are willing to stand out to as "vocal dissenters." 

The daily pledge ceremony "heightens patriotism and raises pride and emotional intensity," plaintiffs observe. Perhaps. But I wonder why humanists, who tend to pride themselves on their rationalism, value intense emotional attachment to a flag and the shallow "We're Number One" form of patriotism it often encourages, to worse effect than an anodyne reference to God. Why not teach your children to dissent instead, most vocally?





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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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