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Jewish Journal

Different constitutional challenge to Pledge’s “Under God”—same result?

by Brad A. Greenberg

April 26, 2014 | 11:21 am

A Humanist family in N.J. has filed a lawsuit to prevent its child's school from reciting the Pledge of Allegiance every morning. You've heard this story before: folks having been challenging the constitutionality of the Pledge for decades—even before the words "Under God" were added. So what is different this time?

According to the lawyer for the American Humanist Association, which is representing the family:

"The lawsuit is an equal protection suit seeking to declare unconstitutional the New Jersey state law requiring daily recitation of the Pledge of Allegiance to the flag in public schools,” David Niose, legal director of the American Humanist Association, told WCBS 880. “Children are taught that patriotism is defined a certain way. They’re taught to associate belief in God with patriot feelings. Certainly, with that being taught, the atheists look like an outsider. The atheist is stigmatized.”

Well, that's interesting. The plaintiff is pursuing its claim on the basis of the New Jersey Constitution, not the U.S. Constitution, which has traditionally been the basis for Pledge challenges. Turns out a similar lawsuit, challenging the Pledge as a violation of the Massachussetts Constitution, is awaiting a final decision from the Massachussetts Supreme Court.

Opponents to "Under God" in the Pledge have adopted this new strategy because past efforts to challenge the Pledge as violating the First Amendment's bans on endorsing religion and discriminating against nonreligion have failed. (Contrary to this RNS article claim that "previous cases held the pledge violates the U.S. Constitution’s ban on the establishment of religion.") In the past few years, the federal Courts of Appeal for both the First Circuit and the Ninth Circuit upheld the constitutionality of "Under God" in the pledge, in part because the Supreme Court previously has held that students cannot be required to recite it and cannot be punished for declining to do so.

In essence, then, the N.J. plaintiff is claiming that New Jersey's Constitution offers stronger protections than the U.S. Constitution. Same with the Massachussetts plaintiff. Will these challenges under state constitutions prove successful where U.S. constitutional challenges have not? That depends on the specific nature of the relevant N.J. and Massachussetts provisions. It's worth noting, though, that it's not unusual for states to offer protections that exceed the floor set by the U.S. Constitution.

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Since launching the blog in 2007, I’ve referred to myself as “a God-fearing Christian with devilishly good Jewish looks.” The description, I’d say, is an accurate one,...

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