The constitutional challenge before the state's highest court over the use of the words "under God" in the Pledge of Allegiance has been underreported by the media so far as to what is actually involved in this case. The resulting public misconception has caused an unnecessary flare-up of the festering cultural battle over the constitutional issue of a wall separating church and state.
This case does not directly involve the usual First Amendment rights under the U.S. Constitution's Establishment Clause (prohibiting government action creating or aiding an official religion), or the Free Exercise Clause (prohibiting government interference with a person's exercise of religion). Thomas Jefferson words describing these rights as establishing a "separation of church and state" has provoked intense and differing feelings about religion and the founding of America.
Jefferson has been vilified by fundamentalist religious groups for his statement. The Texas Board of Education recently tried to delete his name or downplay his role in American history courses. In their view this country was created as a Christian nation and they argue that the government can sponsor nondenominational prayers and the Pledge of Allegiance with the words "under God" in classrooms. On the other side of this argument, there are church-and-state separationist who believe that all references to religion or God in government activities should be removed.
But that is not the issue before the state court. The challenge in this case is being made under the so-called Equal Rights Amendment to the state Constitution which was adopted in 1976. That Amendment in part provides: "Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin." David Niose, the lawyer for the plaintiffs in the case, claims that the Pledge with its reference to God discriminates on the basis of "creed" against nonreligious persons, like his clients. He argued that it treats them unequally.
Niose's main argument is that although nobody is forced to recite the pledge, nonreligious persons, especially students, who decline to recite it because of their beliefs, are made to appear non-patriotic, or less patriotic than those who recite the pledge. This, he says, is discrimination or unequal treatment that violates this part of the state Constitution.
This is a novel argument under the state Constitution. There is no legal state precedent in point for the court to follow. It is also fair to say that the state voters, who 37 years ago approved the Equal Rights Amendment, did not have a specific intention of how the "creed" part of it would be interpreted in dealing with the challenge now before the court. Nor does a literal reading of the amendment offer a clue as to its application to the case in question. It is a case of first impression for the court.
The trial judge who first heard the case, concluded that the pledge is a voluntary patriotic exercise and not a religious practice. She ruled that this case presented a mere disagreement of views over the recitation of the pledge and that this did not amount to discrimination under the state Constitution.
She also added, according to reports of the trial, that schools do not have to shield students from viewpoints with which the parents don't agree. According to the news reports of the arguments before the state highest court, the justices peppered Noise with questions of how a patriotic observance like the recitation of the Pledge of Allegiance discriminates against nonreligious persons under the state's Equal Rights Amendment. Regarding the use of the word "God," one of the justices at the hearing noted that the court officer called that session to order, by saying "God save the commonwealth of Massachusetts."
This case will not be decided on the basis of the use of words like "God," or whether America was founded as a Christian nation. It will be decided on the question of whether nonreligious persons who feel compelled to drop out of a voluntary reciting of the Pledge of Allegiance are being treated unequally because of their "creed" or belief under the state's Equal Right Amendment. The claimed unconstitutional discrimination is that it subjects them to appear as non-patriotic or less patriotic.
In my opinion the court should rule that this does not rise to the level, for example, of discrimination to which black Americans were subjected under the Jim Crow laws. Students who opt out from reciting the pledge are not subject to any treatment by school officials different from that accorded to other students. I have yet to witness or be advised of adults being treated unequally from other adults for not reciting the pledge. I am also not aware of any evidence that Niose presented in the case, nor studies that show unequal treatment to non-reciters of the pledge that rises to prohibited discrimination under the state's Equal Rights Amendment.
The pledge, taken as a whole, is a voluntary statement of patriotism and has a minimal religious effect that does not violate the neutrality role of government in religion.
Such a sensible court ruling should have a calming effect on those itching to engage in a renewed culture war in this state over religion.
Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.