Atheists' new plan of attack against Pledge of Allegiance: state courts

For the second time in a year, American atheists and humanists are asking a state court to remove the phrase “under God” from the Pledge of Allegiance, saying daily requirements to recite the phrase in public schools discriminates against atheist children.

Last month, a nonbelieving New Jersey family sued its local school district in state court, claiming the daily classroom exercise violates the equal protection guarantees of the New Jersey constitution, the American Humanist Association announced on Monday. The group has joined the family as plaintiffs in the case.

Last fall, the Massachusetts Supreme Court heard similar arguments from the humanist association, which represents another nonbelieving family that claims laws requiring their children to recite “under God” discriminate against their beliefs.

This new focus on state laws and state constitutions represents a change in tactics for American atheists, who have traditionally sued in federal courts, mostly arguing that the First Amendment of the US Constitution forbids religious expressions in civic spaces.

In the Massachusetts and New Jersey cases, however, atheists are claiming minority status and basing their arguments on guarantees of equal protection under the law.

“This approach, thinking of atheists as decent Americans who should not be discriminated against, is quite frankly long overdue,” says David Niose, legal director at the American Humanist Association. “It's almost as if the Establishment Clause has distracted from the fact that this is a minority group that deserves to be treated with respect.”

Indeed, atheists, who make up about 3 percent of the population, continue to be one of the least respected groups in the country, according to a number of polls over the years. A 2006 study at the University of Minnesota found that Americans rank atheists below Muslims and recent immigrants as “sharing their vision of American society.” A 2012 Gallup poll found that only half of Americans would consider voting for an atheist.

But while federal courts and First Amendment claims have mostly proven fruitless, many atheists and humanists hope state courts – especially in so-called blue states – will be more open to their claims.

“The states have different standards with regard to equality, as well as a lot of other different constitutional rights,” says Mr. Niose. “So if you're an atheist who happens to feel that you're being discriminated against, it only makes sense to consider all of the alternatives.”

“If it’s very clear that some states have developed equal protection law that really sets a high standard, then that’s obviously where we want to go,” he continues.

Students have long had the right to opt out of reciting the pledge – an exercise of free speech and religion, courts have said.

But in seeking minority status, atheists argue the “under God” phrase keeps them from fully participating in civic life. The New Jersey complaint alleges that, in opting out of the daily reciting of the pledge, nonbelieving students are stigmatized even more.

The law’s requirement “publicly disparages plaintiffs' religious beliefs, calls plaintiffs' patriotism into question, portrays plaintiffs as outsiders and second-class citizens, and forces (the child) to choose between nonparticipation in a patriotic exercise or participation in a patriotic exercise that is invidious to him and his religious class.”

The New Jersey school district sued by the American Humanist Association says this new legal strategy is still the wrong forum to address their claims of discrimination.

“All we are doing is abiding by requirements of state law, we and approximately 590 other school districts in the state,” said David Rubin, attorney for the school district, to the Asbury Park Press. “If the group who’s brought this lawsuit questions the wisdom of that policy or the legality of it, we believe their arguments are much better directed to the state Legislature, who’s imposed this requirement on us, rather than suing an individual school district on this matter.”

But this is a question about fundamental rights, say the plaintiffs, rather than a political issue.  

“The New Jersey constitution does hold out a very high standard of equal protection,” says Niose. “We certainly see it as a jurisdiction that should protect atheists and humanists from this kind of discrimination, no question about it.”