Could This Case Remove ‘Under God’ From the Pledge of Allegiance?

***Update***: I’ve updated this post with some arguments as to why the “discrimination route” might have a chance.

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When Michael Newdow sued to remove “Under God” from the Pledge of Allegiance a decade ago, he argued that it violated the Establishment Clause of the First Amendment. It was a promotion of religion in the classroom. The case eventually went to the Supreme Court, where the justices dismissed the case, saying Newdow didn’t have standing to bring the case.

Now, a family in Boston is trying to finish the job via a different route:

Judge Jane Heggarty heard arguments on Monday in the case of an Action family who has filed suit against the Acton-Boxborough School District to take the words “under God” out of the Pledge of Allegiance.

The Plaintiffs are named as Jane and John Doe out of concern for what they call “public hostility.” Their children are listed as ages 13, 11, and 9.

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Interestingly, the Does do not base their legal claim (as others before them have tried) on the First Amendment’s prohibition on state establishment of religion — what people colloquially call the “separation of church and state.”

Perhaps this is because they would be unlikely to convince a judge — even a Massachusetts judge — that the term “under God” in the Pledge establishes an official state religion.

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Thus, instead of citing the “establishment clause,” the Does challenge the Pledge on the basis of the Massachusetts Constitution’s guarantee of “equal protection.” In other words, they claim that Acton schools discriminate against atheist children when they say the Pledge.

Will this argument be more successful than the Establishment Clause route?

Not likely.

Here are some excerpts from the original lawsuit from 2010 (PDF):

22. Just as America’s Jews, Hindus, and Muslims would feel excluded and marginalized if they were told by their government on a daily basis that the United States is one nation “under Jesus,” so do the Does feel about their government affirming to them through a regular public school ceremony that their country is “under God.”

23. The continued daily, school-sponsored affirmation in public schools, where the minds and opinions of young citizens are shaped, that the United States is “under God” marginalizes the Plaintiffs and reinforces the general public prejudice against atheists and Humanists, as it necessarily classifies them as outsiders, defines them as second-class citizens, and even suggests that they are unpatriotic.

24. While the Plaintiffs recognize that the Doe children have the right to refuse participation in the flag-salute ceremony and Pledge recitation, they do not wish to be excluded from it, and in fact they want to be able to sincerely participate in a ceremony that does not discriminate against them.

25. The Plaintiffs have suffered and continue to suffer actual harm as a direct and proximate result of the Defendants’ actions of conducting a regular classroom Pledge recitation that includes the affirmation that the United States is “under God,” thereby having their religious beliefs publicly rejected, having their patriotism and the patriotism of their religious class brought into question, and being portrayed as outsiders and second-class citizens.

It sounds like lawyer (and author of Nonbeliever Nation) Dave Niose is grasping at straws. Even though it’s possible for atheists to feel left out when others are saying the Pledge, to suggest the school is actively discriminating against atheists seems unfounded and I just don’t think hurt feelings are going to win the lawsuit. I know we sometimes talk about how kids may feel isolated if they’re the only ones not standing for the Pledge, but it’s a big leap to call that purposeful discrimination.

To any lawyers reading this, I’d love to hear if/why you think this case has a chance.

Again, I’m no lawyer, but it sounds like taking the Establishment Clause route with a family that has proper standing (and will have it for years to come) is the only chance we have of removing the Pledge from public school classrooms once and for all.

***Update***: I had a chance to talk to a lawyer about why this case may or may not have a chance of succeeding. It turns out there are good reasons for taking Niose’s route:

1) The Establishment Clause route has been tried before several times, without any success.

2) Equal Protection allows atheists, just like other minorities, to assert an identity-oriented claim. When someone is telling us we’re second class citizens or that we don’t belong, as Niose argues the Pledge does, it’s grounds for citing Equal Protection. That doesn’t apply when you’re taking the Establishment Clause route.

3) By using Equal Protection and not the Establishment Clause, no one can point to the “intent of the Founding Fathers” as a reason for continuing discrimination against us. That argument has been made in previous Pledge cases. (Think about how when African-Americans file Equal Protection cases, the Founding Fathers’ views about slavery are not used against them.)

So perhaps there are some good reasons for taking this route. We can debate the merits of it and predict how the courts might react to it, but this is hardly a frivolous lawsuit. In fact, there are some strong reasons for going this route.

***End of Update***

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Incidentally, the Becket Fund for Religious Liberty, a Christian Right group, is fighting back against Niose with a lawsuit of their own:

Ironically, another family is counter-suing, saying that changing the pledge discriminates against their children.

“They’re asking for my clients to be silenced and not to be able to say the pledge at all. That’s not right,” said Eric Rassback, Beckett Fund Religious Liberty.

How’s that for a dumb argument? “They won’t let us give God a shoutout during the school day! Y U TAKE AWAY OUR RIGHTS?!”

Side note: There’s currently a petition on the White House’s website that won’t do any good but addresses this very issue.

Aaron Scoggin

I don’t want “under God” taken out of the pledge. I just want it restored to its original form. There’s no reason to have it in there, and all it does is create a separation between citizens. It just makes it clear that there are those that believe in a god, and those that don’t. We’re Americans, no matter who we praise. Why can’t that be enough? Due to a lot of reasons (the pledge being a small part of it), I don’t feel any sort of allegiance toward the country in which I live.

If a nation can’t even pledge themselves without feeling rejected, then what good is it?
Brice Gilbert

It’s been said many times before, but even without the “under god” part the pledge is still a very strange thing in the first place.
Steve Ahlquist

When I attended the school committee meetings here in Cranston with my niece, Jessica Ahlquist, the opposing side would use the “under God” bit in the Pledge to good effect. Just before saying the word “indivisible” the entire audience would shout “under God” without any sense of irony, just to let us know that America is not interested in those who do not believe. And to be clear, these people were not interested in some broad definition of God, the God they referenced in their shout was the Christian God.

This use of the Pledge, to bully, harass and discriminate, is the cornerstone of the case in Masachussetts. It’s the same tactic used to pass marriage equality in that state. Given that Nedow can never get standing, because the bar for standing has been raised to ridiculous heights, this new approach deserves a chance.

As for the Beckett Fund, their idea of “religious liberty” is coincidently always aligned with fundamentalist religious Christian values. This is the same group that helped convince the City of Cranston to waste $173,000 on a patently illegal school prayer display.
Michael Devereaux

“The Pledge” is nothing but an indoctrination ceremony. It’s used to create nationalism in our children so when they are called to war, they have plenty of bodies to defend the country. It’s packaged as noble, our duty, patriotic etc. etc. All countries do so. Why do you think the military flies over sporting events…..for the same reason. The Christians hijacked this ceremony like they have with everything else involved in their
religion. The country will NEVER be “ONE NATION, INDIVISIBLE” as long as “UNDER GOD” is in the pledge because religion does nothing BUT DIVIDE.
Cuttlefish

You beat me to it, Steve A.; I was coming to comment on precisely that. In additions (since you have that covered), the comment threads in the Rhode Island media have used both the pledge and “in god we trust” on money to explicitly claim an official religious privilege, treating your niece and those who argue on her side as second class citizens.

In the Cranston ruling, the judge noted that it was the behavior of the school board and local citizens which demonstrated that the banner was no mere historical artifact, but rather was a rallying point for christians against non-christians; it is more than a little ironic that the behavior in the comment threads uses the pledge and IGWT in precisely the manner that showed the banner to be in violation.
Skjaere

Agreed. It’s creepy requiring kids chant an oath on a daily or weekly basis that many of them are too young to even understand (and by the time they are old enough, they are just repeating the words automatically without thinking about them). I honestly don’t understand the purpose of the thing at all, with or without “under God”.
Lei Pinter

IANAL, but it was the inclusion of “equal protection” that helped McCollum v. Board of Education succeed where previous attempts had failed. It might work this time too.
Heavyg

Many years ago Matt Groening had a strip called “Life in Hell”. One of those strips addressed the Pledge of Allegiance. We should just teach our children to recite the Pledge as was written in that strip:

“I plead alignment to the flakes of the untitled snakes of a merry cow and to the republicans for which they scam one nacho, underpants with licorice and jugs of wine for owls.”
― Matt Groening
Adam Patrick

Check out the poll on the website. 77% are in favor of removing “under God”
John A. Anderson

I’m willing to bet my house that no judge is going to take “under god” out of the Pledge. I’m perfectly aware that it was a Cold War era addition and that the original pledge, written by a clergyman by the way, made no reference to god. It’s unconstitutional. But no judge is going to make himself a pariah by doing the right thing. Anyone want to bet?
Reasonable Quest

What if a school representative asked all students to stand and recite a paragraph that included “No Go Exists”. What if they said it doesn’t discriminate because you can be silent during that part. What if parents sued to have it removed and atheists sued and said “you are trying to violate my rights because I want to declare the no god exists every day and have a public platform to do that?

Why is it so hard for people to see things from another viewpoint? When the government promotes the religious viewpoint that a supernatural supervising being exists and has power over us, but doesn’t give the same platform to opposing views, that is favoring one religous viewpoint over others. I just don’t see how this can’t be unconstitutional.
TCC

Perhaps this is because they would be unlikely to convince a judge — even a Massachusetts judge — that the term “under God” in the Pledge establishes an official state religion.

I find this logic perplexing. The Establishment Clause is worded in such a way that it cannot be equated with merely establishing an official state religion: it is clearly broader than that. Any establishment of religion – and we would be fools to deny that God is a religious notion – violates the First Amendment, not just an establishment of a religion. If mandatory, teacher-/administrator-led prayers were an Establishment Clause violation, then it seems like this should be one as well. It’s amazing that this approach hasn’t worked; I suspect it’s just because the combined notions of nationalism and religion (“God and country”) are so entrenched that the outcry would be enormous. Still not a good reason to ignore fundamental freedoms, though.
Chris Harmon

When we skip saying the under god part during the recital (I volunteer at school and am there at least once a week for the pledge).. we definitely have gotten looks.. we changed schools due in part to religious bullying from the students once my grrls expressed our family’s lack of belief in a god.
Guest

I read the comments on those articles and now I’m just depressed. Because, as we all know, not letting Christians force the word ‘God’ into absolutely every aspect of our society = oppression. Won’t anyone think of the Christians?!
Bevidence

…”And do we have to say the
Pledge of Allegiance every day? It’s a pledge. We can say it once. What, they
don’t trust us or something?” [Chris Rock]…

http://www.youtube.com/watch?v=FBlJn99Hrbw (cute video excerpt of “Everybody hates Chris” on the subject)
Bevidence

I feel your pain. My children felt isolated in many things and felt viewed as though they worshipped a devil or something when they were not a part of religious groups, etc. That’s what happens when you choose to live in the South. I’m hopeful humankind will evolve out of the superstitious mindset and not burn freethinkers at the stake.
Staks Rosch

Equal protection could work if they made it clear that “under god” is used to incite threats of violence against atheists. The fact that the plaintiffs have to hide their identity speaks to this, plus the Ahlquist case serves as evidence for this as well.
Cobo Wowbo

From The Daily Show last night: “You’ve confused a war on your religion with not always getting everything you want. It’s called being part of a society – not everything goes your way. You know, I don’t let my kids eat icecream every night, they wish I did, but even they know that doesn’t make me the Hilter of icecream.” – Jon Stewart.
Chris Harmon

I live in CA.. but the Bible Belt part…
Uly

“Ironically, another family is counter-suing, saying that changing the pledge discriminates against their children.“They’re
asking for my clients to be silenced and not to be able to say the
pledge at all. That’s not right,” said Eric Rassback, Beckett Fund
Religious Liberty.”
That argument pisses me off beyond speech. If it’s so important for that family to say the pledge, why aren’t the parents saying it every morning with their kids? Why isn’t the baby expected to get in on the act, reciting it before leaving the house every morning to the family flag?
Because it’s NOT important.
Oddly, my objection to the PoA is less the God part and more the fact that I think it’s morally wrong to teach children to make careless promises that they don’t even understand. The children who are taught this thing, at four and five and six years old, have no chance of understanding the words. Even if they did, these are big concepts – and I don’t like the idea of asking kids to make binding oaths in the first place. What if they don’t WANT to be loyal to their country and flag? They’re never given a choice!
Richard Wade

The update about using the equal protection route sounds like it has plausible arguments to offer. Unfortunately, several Justices on this particular Supreme Court are not affected by plausibility. After all, they think a cross is not a symbol of Christianity, remember?

“A cross on public land? Oh, it’s uh, it’s uh, …a symbol of death. Yeah, that’s it.”

If they can rationalize that without squirting their beer out their nose, then they’ll just say that the word “God” doesn’t mean a deity.

“‘Under God’ in a public school-led ceremony? Oh, it’s uh, it’s uh, …it means ‘all of existence,’ or something else vague and devoid of any particular meaning. Yeah, that’s it.”

The best legal education in the world and a lifelong career on the bench trying very challenging cases means you can say anything and believe yourself.
Ed

While I doubt this case will win, I have to say I’m really happy to hear about it. About a month ago my son who has just started kindergarten this year, told me he “prayed everyday at school” I was naturally quite curious about this, asking him what he prayed. Turns out he was praying “..one nation, under God.” I was relieved but a little unsettled at the same time. I explained that no one had to say the pledge and that it was not supposed to be a prayer. We have also been having lots of conversations about various religions, reading Greek , Norse and Egyptian myths. A few weeks later he asked me which God was America’s god. While his misunderstanding is cute it also illustrates vividly for me why the pledge and our money, ought to be secular. The potential for harm and exclusion is very real.
Darrell Ross

“Why is it so hard for people to see things from another viewpoint?”

This was a rhetorical question right? 🙂 The theists I have conversed with here in Texas are, for the most part, not capable of true empathy. They cannot really see someone from a perspective they are incapable of identifying with. When they are raised their whole life being taught that their viewpoint is the only valid one, this seems to poison any attempt at understanding other perspectives.
Rwlawoffice

The equal protection argument will likely fail because there is no discriminatory intent in the Pledge or the school’s action in having it said every morning. It is not designed to be discriminatory against atheists or any other religion. Not agreeing with it is not enough. It would be like a non citizen going to the school and arguing that the pledge should not be said because he does not agree with it and it therefore discriminates against him.
Darrell Ross

Yes! This pretty much sums up what I wanted to say.

That is that another advantage of claiming that “under God” is divisive is the bigoted Xtians will put up a fight without realizing they are proving the point.
Darrell Ross

The “outcry” by the fundies about gay marriage finally making headway is a good example. But they are irrational. Irrational outcries should soundly ridiculed.
Darrell Ross

The pledge isn’t actually enforced though right? I think removing “under god” from it is more symbolic to some. For me it’s more symbolic anyway. The theists are terribly irrational for the most part. It seems inevitable to me that, now that atheists and skeptics appear to be waking up in the USA, we will eventually scrub our government clean of the religious nonsense.
Carmen

I tend to agree with you. It depends on the level of scrutiny applied, but I think the deferential rational basis test probably would apply here.

In general, if a law or state activity affects a fundamental right or discriminates based on a suspect class, then it is subject to strict scrutiny, and most of the time, it is very difficult to defend a law on strict scrutiny basis.

However, I don’t think that the courts will see this as affecting any sort of fundamental right, especially since children can opt out. I am not aware of any cases holding that atheists are a suspect class. However, maybe this is a good case to advocate for that rule. But even if atheists are seen as a suspect class, I doubt that a court would find that the pledge discriminates against atheists since they can opt out.

It comes down to what you mentioned – that not agreeing with the pledge is not enough. But if they can show real damage to the children who do not recite the pledge – as demonstrated by other comments here – then maybe, just maybe they can show a violation of equal protection.

It’s an interesting case, nonetheless.
Carmen

good point. If they can demonstrate animus, that could make the law more suspect.

The recent prop 8 9th circuit case discusses this in detail – a law based on animus is not valid.
Carmen

Have you ever seen the photos of schoolchildren reciting the pledge in the old days, with the “Bellamy salute”? The nazis and fascists adopted the “Roman salute” which was very similar, so we had to change it to the hand over heart gesture.

http://en.wikipedia.org/wiki/Bellamy_salute
Nazani14

I recall seeing Presidents Ford and Carter standing together reciting the Pledge without the ‘under God’ phrase. Somebody should dig up that footage.

As a veteran, I object to making minors make any vow of allegiance. If they can’t vote, are treated differently in a court of law, etc. we can hardly expect them to pledge not to take up arms against the US or sell state secrets. If allegiance doesn’t have a military meaning in the pledge, then all the kids are saying is “Gosh, I really like the only country I’ve ever been in.”
Troy Truchon

I say we compromise, let them have their “under god” if we can add, at the end, “P.S., there are no gods” I mean that’s fair right? Their kids can just stop at “Justice and Liberty for all” Since the sort of people who believe you can have Justice and Liberty for all while enforcing their religious beliefs on others are incapable of understanding a paradox they won’t even bat an eyelash at saying we are a nation under god, and immediately mocking it at the end.
Anonymous

That suggests another legal approach: The statute which defines the official form of the Pledge of Allegiance is unconstitutionally vague, since it is unclear what would constitute a violation of the statute, nor what penalty would be applied in case of a violation (since no penalty is specified).
Anonymous

Au contraire, it WAS designed to be discriminatory against atheists. That was the very reason that the words “under God” were added.
LeftSidePositive

But requiring a child to opt out DOES discriminate them, because it exposes them to ostracism and potential abuse. It also violates the child’s right to privacy because opting-out necessitates sharing one’s religious beliefs.

Also, something that sets a social norm by declaring one class of people inferior–which the pledge by definition does when it declares Godliness a component of allegiance–is discrimination because it is the state endorsing the inferiority of a particular group. By requiring children to recite the pledge, these children are also being taught that Godliness is a component of allegiance/patriotism so it inevitably follows that these children are being encouraged to have less respect for and trust of those persons who are explicitly excluded from patriotic exercises. These lessons imparted by the state as to the inferiority of a certain group results in harassment, loss of employment, discriminatory hiring and housing decisions, etc., against atheists.

I’m not familiar with the actual case law, but I think it takes only a brief look through historical and present attitudes toward atheism to show that they have long been a suspect class–indeed, they were explicitly excluded from many functions of government until the ’60s, and are widely considered unelectable.
Freak

You mean “I pledge allegiance to my flag and the republic for which it stands, one nation indivisible, with liberty and justice for all.”?
amyc

I’m stuck in Texas with you Darrell (I take solace in the fact that I can just avoid East Texas).
Ebrainer1

“Under God” means and has always meant the judeo christian god. The one UP in the heavens and spelled with a capital “G”. Simple logic, yet the religious wackos keep parading the naked emperor around.
Aaron Scoggin

I agree with this. Like I said above, having “under God” in the pledge creates a rift between citizens. There are those that recite the pledge, and those that “opt out.” Linking belief in a god with patriotism, ODDLY ENOUGH, will make those that don’t believe in it feel less allegiance toward their country.

Personal experience.
Sulris Campbell

if you had something like that on video it would be useful to send that to the current prosecuting attorney.
Uly

Legally, they can’t really make you say the pledge, nor stand for it.

However, many teachers don’t know this, and for sure they NEVER tell the kids that even if they DO know it. They will outright lie about it. Plus, there’s the social pressure. You really want a kid to be the ONLY one not participating in anything all his or her classmates are doing? That’s like saying “The prayer isn’t mandatory, right?”
Keulan

It’s not just the comments that are stupid. The author of the Boston Herald article clearly doesn’t like atheists and does her best to paint the plaintiffs in a bad light. This hatred they are already getting, plus the recent example with Jessica Ahlquist, makes it obvious to me why the atheists in this case chose to remain anonymous.
Anonymous

It always seemed weird to me that millions of children begin every day by chanting robotically in unison about how free they are.
Duane Barrett

Typical aetheist crap
carol

There are way too many people out there in the world looking for reasons to be offended everyday by any little thing. The phrase “under God” is in the pledge. Live with it or just remove yourself from the room until it is said. More children than not will say the pledge and not even think about the words. Please, you can’t tell me these children or others are suffering from these two words. Get a grip. Life doesn’t always throw us what we want.
Heavyg

So Carol you’re in favor of having our children say things that: they don’t understand, they don’t even think about and that they do “just because they are told to”?

So in your mind the pledge is just mindless indoctrination and a lesson in learning to submit to authority?

Great…just what our children need.
Wyocowboy

Would our Founding Fathers be shocked by how the Pledge of Allegiance has been made christian? I would say yes. “under god” was added in the 50’s during the MaCarthy Era…its based on fear just like christianity is.
Alex M

no, Im in school, and yes, it upsets me, for a seculare nation, for all people of color, sex, religion and lack of there, to be discriminated in the classroom and in a coutnry so, your wrong, it is 2 words, 2 words of hate. that we athiests, are not as good, and 2nd class citizens.
PD Vasquez

I think this is a great route to take because the very thought crossed my mind today ….having “under god” in there assumes all americans agree there is a god and that is clearly incorrect. For a long time I thought..who cares, what’s the big deal, just skip that part when you personally say it..but the older I get the less inclined I am to sitting back and going with the masses even if it means the issue is uncomfortable..I don’t believe in God, I am raising my children to understand the place religion has in history and the importance that one way to think should not dominate any pledge or statement publically made. No-one should feel pressured to say a pledge differently than everyone else because they hold different religious beliefs or non-beliefs …we are all citizens of this country and our pledge should fairly represent us all.
Erin Armstrong

i could say the same to you when you argue against gay marriage or abortion. get a grip. sheesh.