BOSTON — The state’s highest court has opened the floodgate of opinion by seeking outside briefs in a religious-discrimination case against the Acton-Boxboro Regional School District by an atheist family that is challenging the use of “under God” in the Pledge of Allegiance.
Last month, the state Supreme Judicial Court requested amicus (or friend of the court) briefs, which are legal briefs from those who have a strong interest in or views on the subject but are not a party in the lawsuit.
In asking for amicus briefs in the case of John Doe vs. Acton-Boxboro Regional School District & Others, the SJC described the case as identifying “important issues of state constitutional and statutory law concerning the daily recitation of the Pledge of Allegiance.”
Listed in the court docket as having filed briefs so far are: the Acton School System, John Doe (the atheist family that filed the lawsuit and wishes to remain anonymous), American Humanist Association, Daniel and Ingrid Joyce, the Knights of Columbus, the Alliance Defending Freedom and the Massachusetts Family Institute.
The case is scheduled to be heard during the first week of May, but no date has been listed.
The unidentified family, along with the American Humanist Association, a secular-rights group, argue in the lawsuit that the words “under God” in the Pledge of Allegiance violate the equal-rights amendment in the Massachusetts Constitution. They also argue that the daily recital of the Pledge counts as unlawful discrimination because reciting the phrase “under God” is endorsing a religion.
Fitchburg attorney David Noise, president of the American Humanist Association, who represents the family, referred comment to AHA Executive Director Roy Speckhardt.
In a statement, Speckhardt wrote: “By tying patriotism to God-belief, public schools not only cast a cloud of suspicion over atheists and humanists, but they also make it impossible for atheist-humanist children to meaningfully participate in the daily exercise of the Pledge of Allegiance.”
He added, “This case is important because it seeks to remedy that discrimination through Massachusetts constitutional and statutory protections.”
The Acton-Boxboro Regional School District and Acton-Boxboro Superintendent Stephen Mills are defendants in the lawsuit.
Mills said in his affidavit in response to the lawsuit that “for both students and teachers, participation in the Pledge of Allegiance is totally voluntary.” Abstaining from the Pledge can be done for no reason, without explanation and without any form of recrimination or sanction, he said.
Mills added that the Pledge of Allegiance “serves the compelling educational and societal interest of promoting among our youth patriotism, virtue and national loyalty.”
Attorney Geoffrey Bok, representing the school district, declined to comment on the pending case. In his court brief, Bok wrote that if the SJC limits the Pledge, “It would establish an unprecedented right of any student or their parent to block public school teachings that are offensive to their religious beliefs, even if the alleged offensive teachings are made totally voluntary.”
The school district has maintained that it abides by a federal law that prohibits punishing students who do not recite the Pledge or part of it, so atheist students are free to skip the words they don’t like.
Last June, Middlesex Superior Court Judge Jane Haggerty issued a 24-page opinion in which she sided with the school district. She ruled that the daily recitation of the Pledge with those words does not violate the plaintiffs’ rights under the Massachusetts Constitution, does not violate the school district’s antidiscrimination policy and does not violate state law.
Haggerty wrote that the Pledge is a patriotic exercise, not a prayer. The judge ruled that the phrase “under God” is not a religious truth.
Haggerty noted that the plaintiffs, who admit that the children had the right to refuse to participate in the Pledge, asserted that the phrase “under God” is a “religious truth that serves as a daily affirmation that their core religious beliefs are wrong.”
Stressing the historical and traditional context of the Pledge, the Acton-Boxboro Regional School System argues that the Pledge is not a religious document or ceremony, but rather a patriotic exercise and a statement of political philosophy that teachers and students may opt out of it they choose, according to the ruling.
Haggerty wrote that the case presents a “familiar dilemma in our pluralistic society — how to balance conflicting interests when one group wants to do something for patriotic reasons that another group finds offensive to its religious (or atheistic) beliefs.”
Citing previous opinions, she wrote that the daily flag salute and Pledge recitation in schools are “clearly designed to promote patriotism” and “to instill a recognition of the blessings conferred by orderly government under the constitutions of the state and nation.”
“The Pledge is a voluntary patriotic exercise, and the inclusion of the phrase ‘under God’ does not convert the exercise into a prayer,” she wrote.
“As recently as 2002, Congress reaffirmed the terms of the Pledge,” she noted, “making findings that support the conclusion that including the phrase ‘under God’ did not transform the Pledge into a religious exercise but rather was intended to reflect the history and political philosophy of the United States.”
The Becket Fund For Religious Liberty, which has thrown its support behind the Acton-Boxboro Regional School District, was involved in three previous federal court cases regarding removing “under God” from the Pledge, according to published reports. They were Elk Grove Unified School District v. Newdow, Calif., 2000 to 2004; Newdow v. Rio Linda Union School District, Calif., 2005 to 2010; and Freedom From Religion Foundation v. Hanover School District, New Hampshire, 2007 to 2011. All of the school districts have kept “under God” intact in the Pledge.
Noise told the Sentinel & Enterprise of Fitchburg in an earlier story that the Massachusetts case will be different from the federal cases that were struck down because this case is focused on an equal-protection argument similar to how gay marriage was legalized in Massachusetts. There is no allegation of bullying or harassment in this lawsuit.
The phrase “under God” was inserted by Congress in 1954 as part of a patriotic effort to distinguish the United States from the Soviet Union, which at that time was considered atheistic. The wording of the Pledge was last reaffirmed by Congress in 2002 without any changes.
Sentinel & Enterprise reporter Michael Hartwell contributed to this story.
Follow Lisa Redmond at www.twitter.com/lredmond13.
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