I Suppose The Massachusetts Case Has To Be Addressed

Several of my grade school classrooms had a framed copy of the Declaration of Independence on the wall.   I'm pretty sure I read at least the first few paragraphs in at least one of them, I am sure a few of those with better eyesight and more of a toleration for Jefferson's prose read the whole thing.  We were required to read it, as I recall in the fifth grade.   In the course of that all of us read:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. 

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.— That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,— That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. 

It wouldn't be a bad thing if more people shared the idea that rights are equally distributed endowments of God instead of unequally distributed privileges.  It would have been good if the signatories of the Declaration had acted as if they believed it.   But I don't see a lot of evidence that most of those millions of school children who read those words over the course of the last two hundred plus years have been decisively moved by them. I've come to the conclusion that anything less than the belief that the rights of other people are a supernatural endowment is unlikely to sustain a societies' respect of those, equally, to the least of those, the people who need those rights the most.  As someone once succinctly put that,  "He don't need no rights, he's got a BMW"

Note that we were REQUIRED to read those words at a rather tender age, they were mounted on the wall.

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The Massachusetts Supreme Judiacal Court  decision in favor of the Acton-Boxborough Regional School District, which didn't remove the phrase "under God" from the Pledge of Allegiance, apparently has some blog atheists in the same kind of tizzy that the earlier case on prayer at town council meetings did. As is often the case in the "rational" community, some unintentionally hilarious histrionic declarations were made.   Reading the decision it is obvious that the parents and those who brought the case for them failed to make any kind of case. They showed no singling out of their children, they showed no kind of harm done to them, their claim of "stigmatization" was found to be "not cognizable" under the state law that was the basis of the suit.  What the opinion said about that is a good example of how legal decisions are a lot more complex in their relevant consequences than ignorant blog blatherers would spend their time even reading, never mind processing.

The fact that a school or other public entity operates a voluntary program or offers an activity that offends the religious beliefs of one or more individuals, and leaves them feeling "stigmatized" or "excluded" as a result, does not mean that the program or activity necessarily violates equal protection principles. If we were to accept the plaintiffs' theory, numerous programs and activities that are otherwise constitutional would be scuttled under the rubric of equal protection. For example, in Curtis v. School Comm. of Falmouth, 420 Mass. 749, 750, 760 (1995), cert. denied, 516 U.S. 1067 (1996), we upheld a program adopted by the town of Falmouth school committee that made condoms available to students in the junior and senior high schools in Falmouth. We rejected the claims of parents and students that the program violated their constitutional rights to familial privacy and parental control of their children's education and upbringing, as well as their right to the free exercise of religion. Id. at 751, 763. If we were to accept the plaintiffs' equal protection theory in this case, the Falmouth program would be vulnerable for essentially the same reason: the plaintiffs in that case could claim that the implementation of the program in the schools--the dispensing of condoms by the school nurse and the presence of condom vending machines in the restrooms--sends a daily message to them that the school accepts and even promotes values that do not comport with their religious views, and therefore publicly renders them "outsiders" based on their religious beliefs. The school condom availability program, which passes muster under the religion provisions of the Federal and State Constitutions, would be struck down under art. 106. A host of other school programs would likewise be vulnerable.

From what I can gather, it would seem that the plaintiffs wasted tens of thousands of dollars that the school district could have spent on something to do with education on a frivolous lawsuit.   As is so often the case, the case was part of a legal strategy.   Part of that is due to a huge overreach, claiming a level of discrimination comparable to that under Jim Crow law

Edwina Rogers, Executive Director of the Secular Coalition for America said the outcome was a disappointment, because of its potential to assert the rights of nonbelievers via Equal Protection and nondiscrimination.

 The Equal Protection clause was cited in Brown vs. Board of Education (1954) to fight racial discrimination, and has also been the basis for many other decisions rejecting discrimination against people belonging to various groups. This was the first time the Equal Protection clause was argued on behalf of nontheists.

“This would have been a groundbreaking case for atheists and humanists, but the Court’s decision today simply reaffirms the status quo,” Rogers said. “Today’s decision tells our children that love for our country must be linked to a god belief, and that in and of itself is discriminatory.”

Considering the plaintiffs showed no evidence of discrimination to any of the courts that heard the case, that is an absurd and irrational claim*.   The claims of atheists that they are victims of massive discrimination in the United States are almost always unsupported by evidence.  And, as I have to repeat, again, if they can show discrimination they are covered under the Civil Rights Act.

I have problems with the Pledge of Allegiance and would be happier if it wasn't recited.  The first of those is religious.  Even as a child it seemed idolatrous to me to pledge allegiance to a piece of cloth.  All of these decades later, I still don't think it can be seen as anything else but idolatry that you would think religious folks would object to.  I certainly don't think that the United States is a nation "under God" unless you are a Mammonist.

There is hardly a phrase in it that isn't open to debate or rejection.  "One nation" "indivisible" is certainly not how right wing federalists and nullificationists see it.  "With liberty and justice for all" is far more an aspiration, not universally shared, that has yet to be achieved. No, I don't like the pledge for a lot of reasons but I am also able to see that it is largely an empty recitation with no more meaning than the lyrics of a pop song in almost every instance in which it is recited.  In short, there is nothing important about it.

The motive in bringing the suit, in the absence of any demonstration of harm, would seem to be exactly what Edwina Rogers said,  "This would have been a groundbreaking case for atheists and humanists"  it would be a propaganda coup, mostly.  Though if it would be at the cost of condom distribution in schools, its damage would have been real.   This case was a publicity stunt and I think the plaintiffs should pay costs when they bring publicity stunt lawsuits.

* Justice Lenk's concurring opinion said that he thought it would have been a different matter if they had shown discrimination.

To be sure, as our holding makes clear, the plaintiffs here did not successfully allege that their children receive negative treatment because they opt not to recite the words "under God," or that the inclusion of that phrase in the pledge has occasioned "the creation of second-class citizens." Goodridge v. Department of Pub. Health, 440 Mass. 309, 312 (2003). Absent such a showing, the plaintiffs' claim must fail. See Matter of Corliss, 424 Mass. 1005, 1006 (1997), citing Murphy v. Commissioner of the Dep't Indus. Accs., 415 Mass. 218, 226 (1993), S.C. 418 Mass. 165 (1994) (differential treatment is "[o]ne indispensable element of a valid equal protection claim"). But our holding today should not be construed to bar other claims that might rely on sufficient indicia of harm. Should future plaintiffs demonstrate that the distinction created by the pledge as currently written has engendered bullying or differential treatment, I would leave open the possibility that the equal rights amendment might provide a remedy.

I agree that if actual discrimination could be shown it would make a real difference, though you'd have to hear the specifics of the case to guess what that difference would be.  In the absence of incidents of discrimination to the plaintiffs in this case,  I wonder if they ever considered that if their children were going to be discriminated against, the chances of that would be enhanced by this lawsuit.