The Massachusetts Supreme Judicial Court has agreed to hear a challenge to a state law requiring schoolchildren to recite the Pledge of Allegiance. Plaintiffs, a Secular Humanist family with children in Massachusetts public schools, argue that the phrase, “under God,” in the Pledge violates a state constitutional ban on religious discrimination. Eight years ago, in Elk Grove Unified School District v. Newdow, the US Supreme Court dismissed a federal constitutional challenge to the Pledge on the ground that the plaintiff in that case lacked standing. It doesn’t look like standing will be a problem in the Massachusetts case, however, so the Massachusetts court may well reach the merits. Apparently, there is little case law under the state constitution that addresses the question. Can Newdow provide any guidance? Newdow is noteworthy mostly for Justice O’Connor’s concurrence, arguing that the phrase “under God” would be permissible under the Establishment Clause as a sort of ceremonial deism. It will be interesting to see whether the Massachusetts court adopts similar reasoning under the state constitution. The case is Doe v. Acton-Boxborough Regional School District.
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