What will be the fate of 'Under God' in Massachusetts and other states?

A family of Humanists in Massachusetts just asked a judge to order an end to the state mandated, teacher led, daily declaration in public schools that the nation is “under God" via the Pledge of Allegiance.

The one previous challenge that reached the Supreme Court of the United States was based on the First Amendment, but they dismissed the case on a technicality without ruling on 'Under God', stating that the plaintiff who brought the case lacked standing.

This case uses a different tactic. It's the first to seek equal rights for atheists and humanists based on the right to equal protection under a state constitution. The legal basis is that (1) any public school activity of a patriotic nature must be nondiscriminatory and (2) “under God” discriminates against atheists and humanists by making believers into patriotic insiders, and nonbelievers into unpatriotic outsiders.

In many ways, the case is following the same roadmap that gay rights advocates used in Massachusetts starting in 2003. They sued the state citing the same equal rights guarantees and won the legal right to marry. Massachusetts became the first state to issue gay marriage licenses and then gay rights advocates in other states copied the same model.

So this could be huge with 'Under God'. The idea is that if this tactic wins with 'Under God' in Massachusetts, then it could win for atheists in other states who adopt the same methods. I suppose, as with marriage equality, we'd end up with two different kinds of states where the Pledge is concerned. Kids in the red states will be saying the post-McCarthyism pledge, and kids in the blue states will be saying the pre-McCarthyism Pledge. Up north we'll be "one nation, indivisible, with liberty and justice" and down south we'll be "one nation, under God, indivisible, with liberty and justice."

What do you think? Will 'Under God' prevail in Massachusetts? Or will atheists finally win equal rights under the law like everyone else? If we do, do you think it will proliferate to other states? Why or why not?

Tags: Allegiance, God, Pledge, Under, of

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If the atheists win in Mass. you can bet that Alabama will pass a law making prayer mandatory to receive any state services.

They'll likely try, but since that's illegal already, I doubt it'll stand. The school system I went to in Mississippi had a mandatory "Minute of Silence" in during which students were encouraged to pray. A cheap work around. I was mocked because I didn't even close my eyes during that sixty seconds. Luckily though, the teacher I had for first period wasn't particularly religious.

How did they know you didn't close your eyes?

Good one. :)

Mississippi = Jesustan .

They'll likely try, but since that's illegal already, I doubt it'll stand. The school system I went to in Mississippi had a mandatory "Minute of Silence" in during which students were encouraged to pray. A cheap work around.

I'm curious. What sort of encouragement to pray was provided?

If the atheists win in Mass. you can bet that Alabama will pass a law making prayer mandatory to receive any state services.

That might be good as it would invite a legal challenge that Alabama could not possibly win. Pin 'under God' to that and it might increase the odds of a win.

Here in the South where some still feel Blue Laws were a good thing I kinda doubt the pledge will be willingly altered back to it's original state. It will just give the theists in my state reason to chime about how their faith continues to come under attack. They are very obtuse about understanding the real meaning of freedom from religion and separation of church and state. Hell, most of them would sign on to a bill that declares christianity as the official state religion and see no problem with it.

Here in the South where some still feel Blue Laws were a good thing I kinda doubt the pledge will be willingly altered back to it's original state.

You're right. They won't. Not without an order from a state court or the Supreme Court.

It's a scenario of many years, but imagine this. Say 'under God' loses in Massachusetts and the Pledge is removed from public schools or just 'under God' is removed. Then, after similar legal actions, several other blue states follow suit. Then a judge in a red state says 'under God' does not discriminate against atheists, there's an appeal and suddenly it's in front of the Supreme Court. How will it go then?

Note a similar scenario occurred with discrimination against gays starting in 2003 in the very same state on the same legal grounds. Ten years later marriage equality is the law in 15 states and the Supreme Court just ordered the federal government to recognize it. It would have gone blazing across the land in every state, but for state constitutional amendments that redefine marriage as heterosexual only, which prevented legal challenges on the same grounds.

But would that work for 'under God'? Could a state prevent atheists from legally challenging 'under God' in court by passing a constitutional amendment to keep 'under God' in public school pledges?  I'm not sure that it could-- not in a way that would hold up in court-- not unless the state also removed from its constitution the guarantees of equal protection and freedom of religion.

It will just give the theists in my state reason to chime about how their faith continues to come under attack. They are very obtuse about understanding the real meaning of freedom from religion and separation of church and state. Hell, most of them would sign on to a bill that declares christianity as the official state religion and see no problem with it.

Sadly, it's been proposed in North Carolina. Not that it would have survived a legal challenge.

The reaction from the right on Fox "News":

So they watch a Humanist argue in court that 'under God' in the pledge establishes that atheists are outsiders and less patriotic than believers, then snort and say "these people" don't have to live here.

Priceless.

"But why should they be catered to? Why are they so special? [...] I'm telling you that I find it offensive that a few people-- these children are pawns from their parents political, you know, statements and beliefs-- to try and enforce it on everyone else and inflict their belief system. It's incredibly selfish. It's small minded. And I don't think the court should cater to them. There is no good reason to do so."

Where do I begin? Atheism is not a belief system. If we were trying to enforce atheism on everyone else, we'd be trying to change the pledge to 'one nation, Godless, indivisible' rather than a neutral removal of all reference to the subject at all. The Constitution mandates that the state has no power over religious belief and must maintain neutrality, not take a side against a minority, which is "the good reason" the court should strike down 'under God' in the pledge.

"Well, what he neglects to say is that you don't have to say the pledge if you don't want to say the pledge."

Imagine the pledge is "one nation, Godless, indivisible" and upon your vehement protestations you are dismissively told this is equality for believers and non-believers, because believers don't have to say it. Of course this would not be equality. It would be the state conferring a preferred status for non-believers, which is unconstitutional.

Besides, what if we do want to say the pledge? Either pledge allegiance to your God along with my country, or not at all? Take it or leave it? That's equality for believers and non-believers under the Constitution? 

The current version of the pledge is the most un-Constitutional law I can think of.  It should have been struck down years ago by Federal courts.  The fact that they didn't is a scandal in my opinion.  Part of the problem, I suspect, was that attention was focused on the wrong arguments.  Read this to find out the right one:

http://goodatheistarguments.blogspot.com/2010/11/pledge-of-allegian...

[In God We Trust] should have been struck down years ago by Federal courts.  The fact that they didn't is a scandal in my opinion.  Part of the problem, I suspect, was that attention was focused on the wrong arguments.

I think the other part of the problem is that the men and women seated on the federal courts typically are theists who have contorted themselves into all sorts of unreasoned positions to uphold it.

"I would suggest that such practices as the designation of "In God We Trust" as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood, in Dean Rostow's apt phrase, as a form a "ceremonial deism," protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content." -The US Supreme Court in Lynch v. Donnelly, 465 U.S. 668 (1984)

In other words, they won't apply the First Amendment to 'In God we Trust'. Why? It's been said soooo many times as the national motto and the Pledge (both since 1957) that it's meaningless in a religious way. Yes, you read that right. The God used in the Pledge and the national Motto is not a God with any religious meaning and purpose, but is a God that is meaningless to that effect (and in fact means anything but that) and serves an entirely secular purpose.

The idea that the phrase is meaningless is falsified in that millions of Christians are so outraged at any attempt by atheists to remove it. Judging by the religiously-oriented hateful words and actions directed at atheists and our non-belief as a result, it's abundantly clear what "under God" means to them.

"There are no de minimis violations of the Constitution – no constitutional harms so slight that the courts are obliged to ignore them. Given the values that the Establishment Clause was meant to serve, however, I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of "ceremonial deism" most clearly encompasses such things as the national motto ("In God We Trust"), religious references in traditional patriotic songs such as "The Star-Spangled Banner", and the words with which the Marshal of this Court opens each of its sessions ("God save the United States and this honorable Court"). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all." - Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).

This is ceremonial deism in action. If these things violated the Constitution in the slightest the court must strike them down. And they do violate it.

Put “In God We Trust” on money, or "Under God" on other governmental expression and the government is 1) explicitly stating that there is a God, 2) endorsing belief in this God to the public, 3) stating this God is worthy of the public trust, 4) stating the nation serves or is subservient to this God, and 5) endorsing for the citizenry compliance with believing in, trusting in, and being subservient to, the God in question, thereby making the state an advocate for the worship of that deity.

Atheists don't believe there is a God, so this statement strips us of our Constitutional right to equal treatment under the law by (1) establishing that Atheists are outsiders and uniquely set apart from the state's belief, trust, and subservience to a deity, (2) reminding Atheists that we are members of a despised and mistrusted minority, and (3) ensuring that, with the non-remedy of telling us not to participate, we are identified publicly and then assaulted, abused, threatened, and otherwise mistreated by the state's preferred majority of believers.

On this, the court claims these are "not minor trespasses upon the Establishment Clause to which I turn a blind eye". This is correct, but only in that the euphemism is far too mild: the Court strains itself beyond all credibility and reason to wilfully ignore these blatant trespasses and the many injuries they inflict, and use spurious arguments like "ceremonial deism" to defend the wholly indefensible.

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