In a recent decision, Massachusetts’ highest court ruled that the pledge of allegiance including the words “under God” did not violate the state constitutional rights of atheists. The pledge has previously been upheld by federal courts against challenges under the U.S. Constitution.
In Doe v. Acton-Boxborough Reg. High. Sch. Dist., No. SJC-11317 (May 9, 2014), the court considered whether the pledge, including the words “under God,” creates a religious classification that violates the equal rights amendment, Article 106, to the Massachusetts Constitution. The plaintiffs argued that by placing their children in an environment where the pledge is recited, and forcing them to decide whether to participate or not, the state was making the children feel less patriotic than their classmates. Plaintiffs emphasized that inclusion of the words “under God” in the pledge expresses governmental support for a belief in God, to the exclusion of those who do not believe.
Classifications based on religion are automatically “suspect” for the purpose of constitutional analysis, but the court ruled that the pledge does not create any classification, because reciting it is voluntary. The court observed that the U.S. Supreme Court in the 1943 case of West Virginia Board of Education v. Barnett, held it unconstitutional to require students to salute the flag and recite the pledge. In view of the pledge’s voluntariness, students can refrain from reciting it for any reason, not just a religious one, and thus no religion based classification is created.
This decision closely follows a U.S. Supreme Court decision allowing a town to open public meetings with Christian prayers offered by clergy. Greece, N.Y. v. Galloway, (No. 12-696, May 5, 2014). The majority emphasized that the prayers were rooted in tradition, the government did not control the message and the attendees at the meeting were not coerced into participation in the religious message. The recent SJC decision may not shed much light on similar questions in Massachusetts as the SJC took great pains to characterize the pledge as a patriotic not a religious exercise, distinguishable from prayer. However, the court did recognize the ability of children to ignore unwanted religious messages.
Schools should heed the reminder that recitation of the pledge is voluntary, and that singling students out for their choice would be unlawful. If you have questions about Free Speech, Free Exercise and Establishment of Religion issues, please consult us.
