Boston Family Loses Court Challenge to Remove ‘Under God’ from Pledge of Allegiance June 11, 2012

Boston Family Loses Court Challenge to Remove ‘Under God’ from Pledge of Allegiance

By Hemant Mehta
June 11, 2012

A couple of months ago, I posted about a family from Boston that was suing to get “Under God” out of the Pledge of Allegiance.

When Michael Newdow made headlines for taking his case to the Supreme Court a decade ago, his argument was that the Pledge violated the Establishment Clause of the First Amendment because it promoted religion. Essentially, he argued for separation of church and state. (The Supreme Court ultimately said he didn’t have proper “standing” and threw the case out instead of ruling on its merits.)

The family in the more recent case tried a different approach. They said the Acton-Boxborough School District was discriminating against atheist children when they said the Pledge. (Legally speaking, they were trying to use the Massachusetts Constitution’s guarantee of “equal protection” to their favor.)

My initial reaction wasn’t optimistic because it’s very difficult to pinpoint how atheists are purposely discriminated against by a district that makes schools say the Pledge.

Now, a judge has ruled against the family (PDF):

… I can only conclude that the insertion of “under God” into the PLedge has not converted it from a political exercise… into a prayer…

…

Moreover, [the laws don’t compel] the [children] to participate; they are free to refrain from speaking any part of the Pledge…

…

Accordingly, the Pledge is not a religious exercise, and, in that context, the daily recitation of “under God” does not constitute an affirmation of a “religious truth.”

The American Humanist Association, which filed the lawsuit on behalf of the Boston family, says they will appeal:

“No child should go to school every day, from kindergarten to grade twelve, to be faced with an exercise that defines patriotism according to religious belief,” said the plaintiffs’ attorney David Niose, who is also AHA president. “If conducting a daily classroom exercise that marginalizes one religious group while exalting another does not violate basic principles of equal rights and nondiscrimination, then I don’t know what does.”

…

Niose pointed out that the Pledge exercise is a daily indoctrination, not just a harmless ceremony. “The flag-salute is how we define patriotism for children on a daily basis,” he said. “When we define patriotism with a religious truth claim — that the nation is in fact under a god — we define nonbelievers as less patriotic.”

I have a hard time seeing how a higher court will overturn this ruling, but I appreciate the AHA’s effort to try and right this wrong.

Having no legal expertise whatsoever, it seems like the most likely route to challenge “Under God” and succeed would be to have a plaintiff who has actually been discriminated against (in some tangible way) because they had to say the Pledge. But that’s not easy to find. So the fight continues…

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  • CoboWowbo

    Instead of trying to get “Under God” removed, try and get the original pledge reinstated.

  • B E Daniels

    I think you might have a better chance having a Buddist or a Hindu raise a case as there is more an arguement that the statement is contrary to their beliefs than atheism.  Atheism is not seen as a belief system by most, but the absence of one.

  • We need to get polytheists as well as atheists in this.

  • This ruling was correctly decided. In no imaginable way could this be construed to be an Equal Protection violation. Nor does “Under God” (or “In God We Trust”) violate the Establishment Clause. It’s time we put this issue to rest.

  • Somewhat related to this is the oath I must take in order to become a naturalized citizen of the US.  Not only must I recite the Pledge; I must also swear to a bunch of other things under the woowoo phrase “so help me God.”  I wonder if crossing out that portion would invalidate my application and/or guarantee rejection.  Unfortunately, I don’t have the guts to find out.

  • Are you sure you have to recite the Pledge of Allegiance? I don’t remember that being a requirement. You can have the words “so help me God” omitted and you can choose to affirm rather than swear. Also, you can have the part about pledging to defend the country militarily if the need were to arise struck if you can show that it would violate your religious or philosophical beliefs.

  • Nonsense.  In both cases, the secular government is declaring itself adherents to a particular form of theism.  It is no less constitutional than it would be if it were “Under Jesus We Trust” or “one Nation under all the gods in the pantheon” or if the dollar said “There is no god for us to trust.”

    The cases that created the nonsensical idea of “ceremonial deism” were wrongly decided by religion-addled judges who, when faced with a challenge to their beliefs, chose adherence to thier religion over adherence to the law.

    The term, and the idea behind it, is nonsensical because 1) it’s not an expression of deism, and 2) it was proposed as reflecting the idea that, through repetition,  these statements lose religious meaning.  However, one need only examine the opinions of religious people in the US and understand that a huge percentage of them see these statements as specifically affirming religious ideas and religious faith.  Since the theory behind it is wrong, it’s value as a “get out of violating the First Amendment free” card is zero.

  • Do you really think that a legislative body that has maybe, MAYBE, one or two atheists is going to remove “under God” legislatively? Especially considering how much the religious right controls things in government.

  • GPC

    How could it not be violating the Establishment Clause? The government is basically promoting monotheism over all the other theisms. It is, in a sense, establishing monotheism as a national belief system.

  •  I just now looked it up. My mistake for assuming the Oath of Allegiance was the same as the Pledge of Allegiance. However, the Oath also has “so help me God” at the end.

    Are you speaking from experience? Everyone I know who has become naturalized is also a devout Catholic, so I’m excited to hear firsthand accounts from the non-religious. Did you omit those phrases? Did you cross anything religious off your forms and encounter no problems as a result?

  • I am a natural-born citizen of the United States. The phrase “so help me God” is optional: http://www.gpo.gov/fdsys/pkg/CFR-2012-title8-vol1/xml/CFR-2012-title8-vol1-sec337-1.xml

  • That’s awesome. I just got the forms in the mail and looked them over, but haven’t gone any further in the process yet. Good to know I have options. Thanks!

  • Gringa

    Agreed – I believe there are many accomondations available if you ask for them.

  • The principal reasoning behind ceremonial deism is not that through repeated repetition they lose all meaning (this was put forth in the concurring opinion of one judge, I believe in Lynch v. Donnelly). Brief, ceremonial mentions of a supreme being occur all throughout our history, especially in the Declaration of Independence which establishes the key philosophy of our country that our rights come from a higher power rather than voluntarily granted to us by the government. This is also reflected in the Great Seal of the United States which has the Eye of Providence and the motto (in Latin) of “He looks favorably on our endeavors.”

    It does not establish monotheism as a national belief system, as even a polytheist who believes in many gods with a lowercase “g” still believes in the general concept of a Supreme Being, that is God with a capital G. Such a generic and brief mention of a Supreme Being cannot conceivably touch on an establishment of religion as envisioned by the people who drafted and ratified the 1st Amendment.

  • Slow Learner

    Even if I granted you the inclusion of polytheists, it does not include atheists or agnostics, and is an establishment of religion over non-religion.
    As such it is a clear violation of the 1st Amendment to the US Constitution to any non-biased observer.

  • John the drunkard

    I just  want to reinforce CoboWobo’s point. We are conceding the moral high-ground by letting these cases be described as ‘banning’ the Pledge. While the legality/appropriateness of the pledge is a legitimate concern, what we are trying to do is RESTORE the pledge to its original, universal, patriotic intent.

    I recently watched the Capra ‘Why We Fight’ documentaries from WWII. It was genuinely stirring to see a group of school kids reciting ‘one nation, indivisible.’

    I understand the original wording to be:
    ‘I pledge allegiance to my flag, and to the republic for which it stands; one nation, indivisible, with liberty, equality and justice for all.’

    ‘Equality’ got the heave ho first, indeed may not have gotten past early drafts, the pledger’s ownership of the flag was tossed during the First World War so no sneaky Huns could pledge to any other flags, and we al know about the Knights of Columbus and the campaign to use the flag for stealth Xtianity in 1954.

  • The idea that through repeated use, the expression looses religious content is, in fact, the theory which Eugene Rostow relied upon when he created the term in the first place.  That’s what it’s supposed to mean.  And, frankly, if that is not the basis for the finding of constitutionality, then there is no basis for it.

    It gains you no traction to note where it has been done historically, because there are innumberable instances where previously accepted acts are found to be unconstitutional.  That the constitution has been violated for a long time does not erase those violations.

    Further, your idea about the Declaration is all wrong.  (Besides the fact that the Declaration is irrelevant to the discussion, as it predated the preclusion on religious establishment in the constitution.)  The mention of the creator was not indended to establish that our rights came from a higher  power.  Rather, it was designed as a political explanation for why the divine right of kings — a properly discarded notion today, but one which was seriously held in the 18th C. — did not apply.  It had nothing to do with the source of those rights, but, rather, whether the people had to live with a king, appointed some believe by god, himself, who violated their rights or whether they could replace him.  

    Furthermore, it absolutely constitutes a long constituting an establishment of monotheism, because even if some polytheist systems recognize a hierarchy, not all of them do.  Besides, passing a law that respects the establishment of “monotheism that is compatable with many kinds of polytheism” is as unconstitutional as one establishing any particular flavor of Jesus worship. 

    Finally, your citation to what was envisioned “by the people who drafted and ratified the 1st Amendment” is interesting, as it references “original intent” constitutional interpretation.  But that is only one possible manner of interpretation and by no means the most used (or useful) one.  What a group of long dead English-subjects-turned-American-citizens is historically interesting, it should have, in my mind, no impact on how people today view the limitations in that document.

  • “In God We Trust” is not deistic, in any sense of the word, Bill. Please explain how it is such. Deistic belief refers to a Creator, a “God of Nature”, but it is one that is not concerned with humanity or any of its creation; instead, it simply created everything, then stepped aside and let everything happen without interfering further.

    “In God We Trust” is VERY different from all the deistic mentions of a higher power on the part of the founding fathers, Bill, and you know that. You should also know that “In God We Trust” was added to everything as a knee-jerk reaction to McCarthyism and the “scare” of godless Communism. There is nothing, absolutely nothing deistic about that.

  • Is it included by default, and people have to ask for it to be removed? If so, that’s still discriminatory, optional or not. “We’ll assume you believe in our God. If you don’t, that’s cool, you just need to be the one to tell us. How are we supposed to know you don’t believe in the same exact deity that we do?”

  • The courts do not rely then, on that definition of “ceremonial deism,” to explain its constitutionality, regardless of how the legal scholar who coined the term came to understand it. 

    “Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns. In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress — their actions reveal their intent” Marsh v. Chambers. So while what people did in the past cannot ipso facto justify what would otherwise be a constitutional violation, historical evidence regarding the intent of a certain portion of the Constitution can be “lightly cast aside” Walz v. Tax Comm’n.

    At the time of the ratification of the First Amendment, the existence of a Supreme Being was considered to be a given, and was never ratified with the intent of creating a government that had to pretend that religion did not exist. Again, a mention of a *general concept of a Supreme Being* aka “God” does not necessarily preclude the existence of multiple gods. Nor is it the government’s responsibility to not take a position on the existence of such a general evocation of a Supreme Being: “We are a religious people whose institutions presuppose a Supreme Being” Zorach v. Clauson.

    I’m not going to continue debating this because I don’t think I’ll ever be able to change anybody’s mind on this one. The binding legal precedent speaks for itself, and I find that Justice O’Connor’s excellently written concurrence in Elk Grove v. Newdow best explains my position on this matter.

  • Russell

    “Moreover, [the laws don’t compel] the [children] to participate; they are free to refrain from speaking any part of the Pledge…”

    Well then that solves everything! We can put prayer back into the school day and government anywhere we want! Anyone who doesn’t like it can just shut up and there’s no harm done and it doesn’t constitute a First Amendment breach. Genius!

  • Too bad. My kids will still be treated like second class citizens.

  • bill, it probably never occurs to you that some people believe not in a male god, but a goddess. i guess those folks can just suck on it, eh? i mean, it’s “silly” to believe in an all-powerful female principle that created all life in the universe. but a “god” is A-OK and atheists and others who don’t believe should just quietly accept this government sanctioned establishment of a theological principle. hmmm. 

  • Why don’t we just rotate them? Something like, “and to the republic for which it stands, one nation, under Pan, indivisible, with liberty and justice, for all.”

  • Neither “Under God” nor “In God We Trust” specify God’s gender. It’s not saying “Under *a* god” versus “Under a goddess.” God in this context refers to a general concept of a supreme guiding force that could be male, female, or genderless; or could be a single entity or a force made up of several constituent entities.

    Not to mention that in standard English the masculine form also serves as the neutral form.

  • AnnGMorrone

  • But that is exactly the point.  The mindless mush that you quote here is exactly the point.  These Judges understood what they were doing was nonsense, but they tried to put a gloss on their results-oriented decisions.  Douglas’s statement is typical, because no, “We” aren’t a religious people.  Some people in the country, are, a lot aren’t.  But to properly enforce the secularlism of the Constitution would take from the faithheads like the very judges who are writing these opinions, the brain opiates that they enjoy. 

    Indeed, the O’Connor concurrence you cite (and “excellently written” is hardly appropirate for that mish-mash of weak-tea piety and excuse-making is demonstrative of the problem.)  She assumes that a reasonable person would be okay with religious invocations, essentially on the grounds that she presumes that the mythical objective observer will, himself, be a believer of some type and will find the use of religion to be acceptable.  In no other area of the law is the rabbit put in the hat in such a fundamental fashion.

    And the pathetic part is that she doesn’t even see that she is doing it.  She talks about religious talk as having a “legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society” without giving the slightest indication of being aware that such god-babble only fulfills the “solemnizing… express[ive]… [and] recognition” function if one is already a believer!  Consequently, it cannot have a secular function, because the invocation of god can only do these things if one already has the non-secular belief.

    “At the time of the ratification of the First Amendment, the existence of a Supreme Being was considered to be a given, and was never ratified with the intent of creating a government that had to pretend that religion did not exist.”

    And at the time the Constitution was adopted, the fact that the offices would be filed by men “was considered to be a given, and [the Constitution] was never ratified with the intent of creating a government that” had women office holders and judges.  So do you favor barring women from office under a guise of “ceremonial patriarchy”?

  • The First Amendment was never ratified with the intention of forcing the government to remove all ceremonial references to a general concept of a Supreme Being. Similarly, there is no portion of the Constitution that was ever ratified that had the intent of barring women from holding office. While the Constitution uses the pronoun “he” and its derivatives, in standard written English this also serves as the gender neutral form. There is no evidence that the Founders chose this usage with the intent of explicitly barring women from office…I don’t think they considered it one way or the other.

  • I’m pointing out the idiocy of the original intent theory of constitutional interpretation.  If you put any relevance to the fact that people in the 18th C. found nothing improper in public references to god by government, then you must put the exact same level of relevance to the fact that in defining the various public offices under the Constitution, they envisioned them being filled by white Christian men.

  • “God in this context refers to a general concept of a supreme guiding force that could be male, female, or genderless; or could be a single entity or a force made up of several constituent entities.”

    And in every respect, equally unconstitutional.

  • I, for one, would do away with the stupid pledge all together.  It’s nonsensical brainwashing. 

  • Coyotenose

    The capitalized word “God”, in Western culture, ONLY refers to the Christian Yahweh. Playing disingenuous semantics games won’t magically change that.

  • Shanine

    I find it strange that a ‘free’ country would make children pledge allegiance to something they don’t understand. They can be taught to love different things about a country, natural beauty, how different the climates can be from one state to another… but to pledge allegiance to a flag and country at 5?? Isn’t that like making a child promise to love god in one religion and protect that belief at all costs?   How can people say that’s not indoctrination lol, it’s something they recite daily for 13 years 🙂 Crazy
     As for the under god bit, yes that’s ridiculous too, God bless America and no one else comes to mind. It’s not a separation of church and state when state funded schools say this pledge every school day.

  • It’s funny you would say Christian men considering there is a provision in the Constitution that explicitly bars religious tests from holding office.

    What evidence in the historical record can you point to that indicated that a certain portion of the Constitution was ratified with the intent to bar women from holding office?

    Also, yes black people generally could not hold office as they were not even considered people, and this is mentioned in the document. Fortunately we amended the Constitution to correct that.

  • My argument is that “Under God” is false.  Not that “God” necessarily doesn’t exit, but either God doesn’t exist, OR, I have the right to not be under God.  I exercise that right, while maintaining that it’s meaningless, since God doesn’t exist.  So, I, a US Citizen am not “Under God”.

    I’ll admit that one is a slight stretch since I suppose if a majority of my fellow citizens decide they are “Under God” (as I’m sure they do) then, the Nation may be considered “Under God”.

    But with the motto, clearly not all Americans trust ‘God’.  So it is a blatant falsehood to say “In God We Trust”.

  • the daily recitation of “under God” does not constitute an affirmation of a “religious truth.”

    Bollocks.  It assumes there is a god (note the singular) and that the country is “under it” (whatever that means).  How on Earth doesn’t this constitute a “religious truth”?

  • The whole idea, not just the religious angle, is somehow to me, at least (and has been since my own childhood)more of  a question of individual freedom from indoctrination. 

    Does any state or institution have a right to daily indoctrination of an entire generation of individuals starting at an early age and continuing on to adulthood? Is that what bees do? Or ants?

    Are humans ever going to be truly free?

     If we allow indoctrination of mind and spirit at any level, I think not.

  • The point missed so often is that America is supposed to be a free society, yet our children are forced (yes, I said forced) to recite a pledge…to a flag, to the nation, and to the concept of God.

    Why? To teach them to be patriotic? No, the truth is the pledge is indoctrination. If you want to teach children to be patriotic, give them a reason to be patriotic. The first step would be to stop removing civics and history classes, and be more honest about our history.

    Yes, America allowed slavery but fought to abolish it. Yes, we treated minorities like second class citizens. Yes, we committed genocide against the Native Americans. Yes, we used Chinese immigrants to build our railway system. Yes, we allowed private industry to commit inhumane acts for profit. Yes, we started a number of wars whenever it suited us economically.

    These are truths that cannot be hidden, so talk about them. Hiding the truth or lying about it does not make someone patriotic. Quite frankly, neither does a hollow pledge.

    Yes, I called the pledge hollow. It is. The pledge lacks merit when the children do not understand the words they are being coerced into saying. They are neither taught the true history of the pledge or their right to not say it for any reason including religious convictions.

    Sitting quietly while other children say the pledge is not sufficient. The children who refuse to say the pledge (and that is their right) are still subject to the indoctrination of the recital. They have to hear it day in and day out. In addition, these children are now more easily singled out.

    I have argued this for years and have had many angry parents basically say F any kid who doesn’t say the pledge. But that is not how our society is based.

    Rousseau discussed the Will of All in his epic The Social Contract. The Will of All is a majority rule concept. If we allowed majority rule, our democracy would stomp on the rights of every minority group and every individual who did not fit into the norm. And that is why civil liberties exist; to protect the few from the many.

    The Pledge of Allegiance is a violation of our children’s civil liberties. Every child has the right to say it, just as every child has the right to pray. However, the school is a government agency. The school is also for all children. Therefore, the school cannot lead children in prayer anymore than it can lead the children to pledge their allegiance to a flag (idolatry), to the republic (nationalist indoctrination), or to God (religious indoctrination).

    And here is the crux; the Supreme and local courts have historically argued that the “under God” phrase is not an acknowledge of a specific religion because “God” is a universally concept. Unless you are an atheist, or a Buddhist, or your God is Satan, or the Earth. Or worse, if you realize the actual context being that God is represented in our flag and our nation, which is a blasphemy to some of us.

    Yes, I said us. As a child I believed that pledging my allegiance to the flag was a form of idolatry and I would be punished for eternity for this form if prayer to a false idol. And I took my lumps for that conviction. Some would say I deserved it. But did I? Did I deserve to be brutalized for not pledging my allegiance to the flag? Of course not.

    Not, if you believe in the concept that we are free. And I have heard the argument that by not saying the pledge you dishonor all the men who fought and died for our freedom. Yet, do we not dishonor them further by forcing people to say a pledge of allegiance rather than teach why we should love America? Do we not dishonor them further by limiting the freedom of the few to placate the many? Is that the America you truly want to live in?

    I don’t want that for anyone. I am not moving to another country to placate you people. I am staying right here and I am going to force you to think this through logically rather than emotionally. You know I am right. Deep down, you all know I am right.

  • SatanHimself

    You can bet that if the Pledge said, “One Nation, which denies the Holocaust,” every judge in America would rule that as discrimination or violation of equal protection, because the Jews would scream about it (even though they wouldn’t be “forced” to say it, and, as we all know, they have incredibly disproportionate political power (i.e. $$$).
    (BTW, this poster is an atheist “Jew”.)

  • Gunstargreen

    This is no surprise. It’s unfortunate but it’s no surprise.

  • Yes, interesting, because if you honestly believe that they envisioned Jews, Muslims, atheists and Hindus in those offices, you are delusional.  But forget the “Christian” part.  Let’s say “white males.”

    Because the issue isn’t whether they intended to bar women.  Rather, the point is that you would put emphasis on what these 18th Century people intended, rather than what they wrote. 

    There can be little doubt to anyone who has studied the period that they could never envision a woman, for example, being a Justice of the Supreme Court. 

    One could adopt your “original intent” argument and say that since they didn’t envision a woman in that role, that the definition of “justice” has to be read so as to carry out that intent — i.e., as a male-only preserve. 

    Otherwise, then what you would be doing is ignoring the original intent in order to come up with an analysis which is true to the terms of the provision, regardless of the original intent.

    And if you apply that thinking to the First Amendment, it is reasonable to find that even if the people who wrote the Amendment would not have envisioned that it would eliminate all references to god or gods, that what they actually passed, requires exactly that, regardless of what they thought, the same way that the gender-neutral language in the d0cument is read to require that women be permitted to hold offices that the ratifiers would never have intended them to hold.

  • That’s a very good point, Coyotenose.  (although I think that the Jews — at least those that don’t do the whole “g_d” nonsense — have the same capitalization fetish.)

  • Allison

    I work in a school, and this irritates me daily!  

  • Jonah

    I think you mean Acton family. 😉