A Long Way to Go for Atheist Equality: An Analysis of the Doe v. Acton Pledge Case

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.

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