Wednesday, May 14, 2014

Massachusetts Upholds Pledge of Allegiance

Massachusetts' Supreme Judicial Court held in Doe v. Acton-Boxborough Regional School District that the pledge of allegiance does not violate the state constitution.  Plaintiffs' claim was a denial of equal protection rather than religious freedom or establishment of religion.  The court reasoned that (1) "the pledge is a fundamentally patriotic exercise, not a religious one;" (2) "no student is required to recite the pledge;" and (3) "[w]here the plaintiffs do not claim that a school program or activity violates anyone's First Amendment religious rights (or cognate rights under the Massachusetts Constitution), they cannot rely instead on the equal rights amendment, and claim that the school's even-handed implementation of the program or activity, and the plaintiffs' exposure to it, unlawfully discriminates against them on the basis of religion."

Plaintiffs' had argued that the Pledge "stigmatize[d]" and "marginalized" some students, making them "feel excluded."  Per its third point above, the court emphasized that their was no evidence "that their children have been punished, bullied, criticized, ostracized, or otherwise mistreated by anyone as a result of their decision to decline to recite some (or all) of the pledge."  Rather, plaintiffs' claim was

more esoteric. They contend that the mere recitation of the pledge in the schools is itself a public repudiation of their religious values, and, in essence, a public announcement that they do not belong. It is this alleged repudiation that they say causes them to feel marginalized, sending a message to them and to others that, because they do not share all of the values that are being recited, they are "unpatriotic" "outsiders." We hold that this very limited type of consequence alleged by the plaintiffs -- feeling stigmatized and excluded -- is not cognizable under art. 106.(23)

Three weeks ago, I posted on a similar pending suit under New Jersey law.  This Massachusetts decision would suggest the answer to my earlier question of whether state courts might treat Pledge challenges differently than federal courts is no.

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