THE BLOG
05/12/2014 04:02 pm ET Updated Jul 12, 2014

Massachusetts Supreme Court Decides Pledge of Allegiance Case

The Massachusetts Supreme Court decided on May 9 that "under God" in the Pledge of Allegiance as recited in public schools does not discriminate against non-religious students (Jane Doe v. Action-Boxborough Regional School District). Reciting the pledge was voluntary. The Court reviewed the social and legal history of the pledge that first appeared in 1892. The pledge was codified in 1942 with "under God" added in 1954. The Court concluded that reciting the pledge "is a fundamentally patriotic exercise, not a religious one." The Court cited the 2004 U.S. Supreme Court decision in Elk Grove United School District v. Newdow that contained a similar quotation.

The Court's analysis applied Massachusetts state law but did look to other sources in support of its conclusions. Federal appellate courts that have considered the "under God" language have reached a similar result. While a Massachusetts statute required teachers to lead the pledge, all parties in the current case agreed that the recitation was voluntary. This is in accordance with the famous 1942 U.S. Supreme Court decision, West Virginia State Board of Education v. Barnette, that ruled that students could not be compelled to recite the pledge.

Nor could the plaintiffs demonstrate that refusing to recite the pledge unlawfully classified them and resulted in different treatment based upon this classification. "... Significantly, no student who abstains from reciting the pledge, or any part of it, is required to articulate a reason for his or her choice to do so." Consequently, there is no religious distinction being imposed.

The plaintiffs asserted that they felt "stigmatized," "marginalized," and "excluded" when others recited the pledge and they did not. However, there was no evidence of punishment, bullying, criticism, and ostracism as a result of declining to recite the pledge. Additionally, the plaintiffs stated that there was a poor public perception of atheists that might "possibly" lead to adverse actions. The Court found that this claim was insufficient.

The plaintiffs contended that the mere recitation of the pledge was "a public announcement that they do not belong." The Court stated that under the plaintiffs' view, "numerous programs and activities that are otherwise constitutional would be scuttled under the rubric of equal protection." The Court in conclusion found no violation.

As I have previously noted in discussing a recent U.S. Supreme Court prayer decision, public displays of "secular religion" that may utilize religious language to convey tradition, heritage, solemnity, or patriotism are frequently upheld by courts. The public square need not be free of religion as long as coercion, proselytizing, and stigmatization do not exist. The Massachusetts Supreme Court's decision is unremarkable under the particular facts of this case. It is in accordance with the broadly held judicial position on this issue. Contemporary courts allow greater latitude in the public expression of religion than many persons might suppose.

The 1971 U.S. Supreme Court decision, Lemon v. Kurtzman, is very much alive. That case promulgated a three factor test for a permissible religious action by government that does not violate the Establishment Clause. Does the governmental action have a secular purpose, neither advancing nor inhibiting religion, and is it conducted without excessive governmental entanglement with religion? This standard is at the foundation of the current legal analysis of public displays of religion.