To call it a disappointment would be an understatement. Last week’s ruling from the Massachusetts Supreme Judicial Court (SJC) in the case of Doe v. Acton-Boxborough Regional School District, where the court upheld the “under God” wording of the Pledge of Allegiance, sent a clear message to American seculars: You have a long way to go to achieve equality.
The case, brought by the American Humanist Association’s Appignani Humanist Legal Center on behalf of an atheist-humanist family, challenged a law requiring schools to conduct a teacher-led Pledge of Allegiance exercise each day, on grounds that stated the obvious: the Pledge favors believers over atheists, because it portrays believers as the true patriots.
The fairly progressive SJC, which has an otherwise solid track record on equality, slammed the door on the atheist claim of bias. There was some indication from the court that it might reconsider the issue if a future plaintiff comes forward with evidence of Pledge-related bullying, but the primary message was that it didn’t feel that the “under God” wording of the Pledge was discriminatory.
In other words, they just weren’t sympathetic. Go away, atheists—stop complaining.
When we filed this case we felt that it might have game-changer potential. The suit asked the court to consider “under God” not from the standpoint of church-state separation, but strictly from an equality-based angle—under the state Constitution in a jurisdiction that takes equality seriously.
The state’s high standard of equality is evident from the groundbreaking 2003 SJC case, Goodridge v. Dept. of Public Health, which was the first case to legalize same-sex marriage anywhere in America. Same-sex marriage has swept across the country for the last decade, and the Goodridge case started it all. With such trailblazing equality precedent in the SJC’s recent memory, we were optimistic that the court would look unfavorably on a law requiring daily invidious discrimination against a religious minority. In fact, in some ways our case was arguably stronger than Goodridge. (Same-sex orientation isn’t expressly enumerated as a protected class under the Massachusetts Constitution, for example, whereas religion is.)
But it wasn’t to be. With its decision last week the SJC sent atheists packing, refusing to find that the daily “under God” recitation classifies atheists differently than believers. The court did acknowledge, in a conspicuous understatement, that “the words ‘under God’ undeniably have a religious tinge.” (The same way sirloin steak has a “meaty tinge,” one Facebook commentator noted.) This “religious tinge,” however, was an insufficient basis for a religious discrimination claim in the court’s view, even though the exercise is (1) led by teachers, (2) done to instill patriotism in children, and (3) conducted every day for 13 years of school. And of course, it’s also recited in the context of a society that carries widespread unfavorable views toward atheists.
Nope, the court said. Nothing discriminatory about any of that.
The fact that the Pledge exercise is voluntary was a significant factor to the court. If atheist kids choose not to participate, apparently they should be thankful to have the privilege of sitting and watching while their public school conducts an exercise every day that portrays another religious group as the quintessential patriots. That option, however, obviously doesn’t change the fact that, every day, an exercise is occurring that marginalizes them.
The SJC also gave weight to the fact that the children involved had not been bullied or ostracized. The stigmatization of having one’s religious class portrayed unfavorably on a daily basis wasn’t enough for the court, nor was the fact that full participation in the exercise is impossible for the atheist child without outwardly rejecting his/her beliefs (or not saying the two troubling words—but then, that wouldn’t be full participation). The court wanted to see more tangible harm, but one must wonder if this demanding standard would hold if the Pledge marginalized Christians, racial minorities, or women. The school conducts an exercise each day that marginalizes you, the court is telling the atheist, but if you don’t like it, just sit out. And don’t come complaining about it unless someone bullies you.
In fact, we did present evidence of bullying, testimony showing that public school children see the Pledge as validating anti-atheist prejudice. An affidavit showed that classmates of a girl who challenged a prayer banner in Cranston, Rhode Island, screamed the words “under God” at her during Pledge recitation at her school. (This is the only known instance of an open atheist student making a church-state claim in New England in recent memory.) The Doe court, however, considered this irrelevant.
In the wake of this outcome, it’s natural to ask if there is anything that we would do differently. Honestly, not much. Our briefs were extremely strong, directly addressing every issue and shooting down every argument from the other side (including those upon which the court ultimately based its decision). Experts who reviewed our briefs repeatedly told us how impressed they were with our case (including a former high court clerk, who said our briefs were among the most impressive he had ever seen). If we made a miscalculation, it was in not anticipating that the court would expect bullied children before it would grant relief—but frankly, that has never been the standard in Massachusetts for other minorities.
In assessing the rebuke of atheists by the SJC, it could be instructive to consider gay rights jurisprudence, and not just Goodridge. Before the Goodridge revolution, two other cases had set the stage. In the 1986 case of Bowers v. Hardwick, in a ruling that infuriated the gay rights community and others, the United States Supreme Court upheld a Georgia sodomy law, declaring that the Constitution’s privacy protections do not convey “a fundamental right upon homosexuals to engage in sodomy.” Hostile to gays, invasive of privacy—the Bowers ruling seemed out of touch with contemporary standards of tolerance even as the ink dried. It was ugly precedent that made many uncomfortable.
It took years, but in 2003 Bowers was finally overturned by the Supreme Court in the case of Lawrence v. Texas, which declared that sodomy laws are indeed unconstitutional. (In his now-famous dissent in Lawrence, Justice Scalia railed against the “homosexual agenda” and warned that the decision might be used to justify same-sex marriage. And he was right, for it would be cited later that same year by the Massachusetts court in Goodridge.)
These same-sex cases were in my mind throughout the Doe litigation, because from the beginning I felt that it could be an important case to the secular movement, win or lose. If we won, it could be a potential game-changer, like Lawrence or Goodridge. If we lost, it would sit like Bowers as ugly precedent, a ruling that would seem fundamentally unfair to anyone—believer or nonbeliever—who considers the facts objectively.
Of course, now we know what we got: Bowers. The inherent unfairness of the Doe ruling is not hard to see, and judging from social media there are many who are unhappy with it. With Doe, we now have a case—from a unanimous court in a liberal state—that says the government can define patriotism on a daily basis for children in a way that exalts one religious group and portrays atheists as less patriotic. Yes, folks, this is equality—nothing discriminatory about that.
Like Bowers, this kind of precedent makes fair-minded people uncomfortable. And that’s a good thing.