Last week, as children across the country returned to school and struggled to remember the words to the Pledge of Allegiance, the Massachusetts Supreme Court was considering whether to make it easier for them by removing “under God.”
This might seem like déjà vu. Church-State separationists have tried unsuccessfully to pry “under God” out of the Pledge since Congress inserted the phrase in 1954—more than a decade after the oath was adopted. But the case filed by the American Humanist Association (AHA), which is representing an atheist family from suburban Massachusetts, may be different. Rather than contesting the language in federal court—where any challenge is likely to come up against an unsympathetic Supreme Court—lawyers have opted to sue in state court. The legal angle is also new. Traditionally, lawsuits challenging “under God” in the Pledge have hinged on concerns over the separation of Church and State. But lawyers in the Massachusetts case are charging that the practice violates the state’s Equal Rights Amendment, which prohibits discrimination on the basis of religious creed. The Pledge, advocates say, ostracizes nonbelievers by linking patriotism to belief in God. “Children every morning are pledging their national unity and loyalty in an indoctrinational format, validating religious God belief as truly patriotic and invalidating atheism as second-class citizenry at best, unpatriotic at worst,” David Niose, former president of the AHA and lead counsel on the case, told the court.
The new tack limits the outcome of the case—if the justices rule that the Pledge is unconstitutional, their decision will apply only to Massachusetts. But if they’re successful, advocates for nonbelievers say they will take the effort nationwide, working state by state until “under God” is gone. They’re hopeful about their modified strategy, which they say is similar to the one adopted by proponents of marriage equality (a cause that got its first court win in Massachusetts). The parallels between gays and atheists aren’t just strategic. “We are a community that’s in the closet in a lot of ways,” says Roy Speckhardt, executive director of the AHO. “In some ways we’re even more closeted because it’s so easy to remain in the closet even to people who are close to you. That’s harder for people who want to live complete lives as gay and lesbian couples. People can get by without saying that they believe in God.”
Critics dismiss the recalibrated scheme as a weaker version of the old Church-State argument. Because children are able to opt out of saying the Pledge of Allegiance, they say, it’s absurd to claim that nonbelievers receive unequal treatment; regardless of whether the words are being challenged under state or federal law, “under God” is a statement of political philosophy, not an endorsement of a particular religious attitude, they say. “The words ‘under God’ were in there to talk about limited government,” says Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty, a public-interest law firm that argued on behalf of the school district. “You’re born with certain rights. They don’t come from the state. That’s what it means—it’s not something that’s proclaiming a religious truth.” This distinction is likely lost on children, who Speckhardt says face bullying and social exclusion if they openly refuse to say the Pledge. Reciting the Pledge but omitting “under God” is, according to him, an unacceptable solution.
For a case like this, Massachusetts is a logical place to start. It’s one of the least religious states in the nation; only 40 percent of its residents say religion is very important in their lives, and only 60 percent say they believe in God. It’s also an extremely liberal state. But even a victory in Massachusetts would mean the beginning of a long, hard slog across the country. Americans’ deep animosity toward atheists and ongoing public support for keeping the Pledge intact could make this a tougher fight than they’re expecting. There’s been little polling data on the Pledge of Allegiance since 2004, when a challenge to “under God” came before the Supreme Court and was rejected because the parent bringing the suit did not have custody of his child. Back then, perspectives were decisive: More than 9 in 10 Americans supported keeping “under God” in the Pledge. Speckhardt says that this statistic has likely changed given that more Americans now identify as religiously unaffiliated. But these changing attitudes may be less of a bellwether than he suggests. Two-thirds of religiously unaffiliated Americans nevertheless say they believe in God.
Meanwhile, atheists remain a distrusted minority. When asked whether various groups shared their vision of American society, polling respondents ranked atheists below Muslims, recent immigrants, and gays and lesbians. Even nonbelievers who don’t use the “atheist” label aren’t exempt from this hostility: A survey released in July by the Pew Research Center’s Religion & Public Life Project showed that nearly half of adults agree that the growth of the nonreligious is a bad thing for American society. A dramatic shift in public perspectives isn’t completely out of the question, especially for nonbelievers who say they’re following in the footsteps of the same-sex marriage movement. In 2003, when the Massachusetts Supreme Court legalized same-sex marriage in its state, only around one-third of Americans supported gay marriage. Today, the number has risen to more than half. But a comparable turnaround in public opinion would be surprising. For the moment, advocates are in the position of asking courts to rule against public will. “You have to convince a judge to issue an opinion that they know will be unpopular, and it seems reasonable that they might not want to go there,” says Douglas Laycock, a professor of law and religious studies at the University of Virginia.
Congress may pose yet another hurdle. In 2002, after a federal circuit court ruled that “under God” violated the Constitution’s prohibition on state endorsement of religion, the Senate passed a resolution 99-0 in support of the Pledge. Dozens of House members gathered in the steps of the Capitol to sing “God Bless America” and recite the Pledge. “I thought, wow, we haven’t seen that much bipartisanship in 50 years,” says Rick Garnett, a professor of law and political science at Notre Dame University. “It’s early to say, of course, but it’s hard to imagine that Congress wouldn’t respond somehow—with a law that in order to get federal education funding, the states would have to do the Pledge, maybe.”
The ruling in the Massachusetts case isn’t expected for several months, but Speckhardt says his organization is already investigating other states—specifically, New Jersey and Connecticut—where similar cases could be successfully launched. They will pursue these cases regardless of the outcome in the current case, but the momentum from a win in Massachusetts would help fuel the fight. For them, the case represents a place where the growing numbers of religious unaffiliated Americans should lead to an obvious outcome: striking a specific nod to a monotheistic god from a government-mandated pledge. The question is whether the Massachusetts Supreme Court sees the need to issue another unpopular decision, which could begin to remake a ritual that has been enmeshed in American public education for the past 70 years.