Why Hasn’t the Massachusetts Supreme Judicial Court Ruled on the Pledge of Allegiance Case Yet? April 14, 2014

Why Hasn’t the Massachusetts Supreme Judicial Court Ruled on the Pledge of Allegiance Case Yet?

Last September, orals arguments took place in front of the Massachusetts Supreme Judicial Court concerning the Pledge of Allegiance. If the plaintiffs win, it would likely mean the end of Pledge recitations in public schools throughout the state.

I’m going to throw out a hypothesis (suggested by reader Pluto Animus) that may end up being completely wrong, but hear me out on this.

First, a little background.

Back in 2010, the American Humanist Association’s Appignani Humanist Legal Center and David Niose (a lawyer and author of Nonbeliever Nation) filed a lawsuit on behalf of a family whose children attended schools in the Acton-Boxborough School District (in Massachusetts). The issue was that the children — ages 13, 11, and 9 — had to say “Under God” in the Pledge of Allegiance and that went against their family’s beliefs. (The names of the family members have been kept anonymous, presumably so that they’re not directly harassed by Christians.)

What made this case unique was that Niose wasn’t arguing that the Pledge was unconstitutional because it “established religion” like Michael Newdow argued over a decade ago in front of the U.S. Supreme Court.

Instead, Niose fought it under the “Equal Protection” part of the Constitution — that is, he argued that the children were being discriminated against:

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.

In June of 2012, a judge ruled against the family, saying that this wasn’t really a case of discrimination:

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.”

(If saying “under God” isn’t an affirmation of a “religious truth,” then what is?)

Anyway, the AHA appealed the judge’s ruling and they got word last October that the state’s Supreme Judicial Court had accepted their case for review. Instead of having the case heard by another lower court, the highest court in the state would tackle the case directly:

“Public schools are defining patriotism and loyalty on a daily basis by exalting one religious group and stigmatizing humanists and other non-theists. Of course that’s discrimination,” said American Humanist Association Executive Director Roy Speckhardt. “We feel confident that a fair hearing will result in a finding that the state law requiring this discriminatory practice violates the state’s equal rights amendment.”

In an amicus brief, the Center for Inquiry made a very relevant point in defense of the Humanist parents and their kids:

If the purpose of the Pledge is to instill patriotism, this task plainly can be accomplished without requiring students also to affirm belief in a deity. To hold otherwise would be to rule that one must be a monotheist to be a true patriot and participate meaningfully in a patriotic exercise. Such a ruling would be directly contrary to the equal protection guarantees of the Massachusetts Constitution, which provide that one’s standing in the political community is not dependent on one’s religion.

Keep in mind that no matter how this case is decided, the judgment will only affect those on Massachusetts. It’s not like anyone can appeal the decision to the U.S. Supreme Court. But as we all remember, when the same court ruled in support of same-sex marriage in 2003, making Massachusetts the first state to legalize gay marriage, these decisions can have a ripple effect in other states.

Which brings me back to the hypothesis.

The oral arguments in Doe v. Acton-Boxborough Regional School District were heard on September 4 of last year. If you look at the calendar of oral arguments heard that month, you’ll see 25 cases.

24 of them have been decided. Guess which one hasn’t been ruled on yet?

The SJC itself says on its website that “most opinions are released within 130 days of oral argument.”

It’s been more than 220 days now. More than seven months.

So why haven’t we seen a decision?

Well, there was another time the Court delayed a ruling this long… They waited eight months before issuing their bombshell decision in the gay marriage case. (In recent years, the U.S. Supreme Court also waited until the final day of the term to issue important decisions on health care and LGBT rights.)

But does that really mean anything in this case? This is what one lawyer said in 2003 as everyone awaited the marriage decision:

“Usually when you see something like this, it’s indicative of a more complicated case or a case where there may not be a clear consensus,” said Martin Healy, general counsel for the Massachusetts Bar Association. “To read beyond that, I don’t think is wise.”

So, at the very least, this Pledge case appears to be a complicated one. It doesn’t appear to be a slam dunk, the-Pledge-is-totally-fine consensus. That could be good news for our side.

If we want to play the game of speculation — and why shouldn’t we? That’s what Court-watchers love to do — then you might ask: Why would the Court wait so long to issue a decision?

Maybe because they’re going to decide the Pledge is indeed illegal in its current form… and they want to delay the backlash as long as possible.

Maybe because they want to wait until the school year comes to a close so that any changes to the daily ritual occur over the summer.

Or maybe they’re waiting to get closer to June 14th, which would mark the 60th anniversary of when the words “Under God” were inserted into the Pledge in the first place. Because I suppose that would be weirdly appropriate.

Needless to say, after waiting this long, it would seem even more unusual if the Court affirmed the lower court’s ruling, essentially telling everyone, “Move along, there’s nothing to see here.”

(Portions of this article have been previously posted.)

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