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‘Under God’ will remain in pledge, Mass. SJC rules

The state’s highest court on Friday rejected the proposition that the phrase “under God’’ in the Pledge of Allegiance violates the religious beliefs and equal rights of an atheist family
with children in the Acton-Boxborough Regional School District.

“The daily recitation of the Pledge of Allegiance does not violate Article 1 of the Massachusetts Declaration of Rights,” the state constitutional provision that guarantees equal rights, Chief Justice Roderick Ireland wrote for the unanimous Supreme Judicial Court.

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Ireland wrote that the couple from Acton, who contended that their three children would be deemed unpatriotic or be socially marginalized by not taking the pledge, had not shown that the children had been treated differently.

“There is no evidence . . . that the Doe children have ever been subjected to any type of punishment, bullying, or other mistreatment, criticism, condemnation, or ostracism as a result of not participating in the pledge or not reciting the words ‘under God,’ ” Ireland wrote.

Without evidence that someone’s rights had been violated, the SJC said, the court would not strike down a voluntary practice or a law as a constitutional violation simply because someone had a philosophical disagreement with it.

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“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,’’ Ireland wrote.

Moreover, the court concluded, the school system does not track how patriotic a child is, looking at whether the child does not take the pledge or chooses not to speak the phrase “under God.”

“Reciting the pledge is a voluntary patriotic exercise, but it is not a litmus test for defining who is or is not patriotic,’’ Ireland wrote. “The schools confer no ‘privilege’ or ‘advantage’ of patriotism . . . to those who recite the pledge in its entirety.’’

The ruling was made in a lawsuit filed in Middlesex Superior Court. Through the American Humanist Association and its lawyer, David Niose, the Acton couple, referred to only as Jane Doe and John Doe, argued that the inclusion of the phrase discriminated against their religious beliefs that neither God nor gods exist.

In a statement posted on the nonprofit organization’s website, Niose said he was “very disappointed’’ by the decision, adding that he continues to believe that the pledge is not a harmless ceremony, but remains a means of indoctrinating children into theist beliefs.

“The flag salute is how we define patriotism for children on a daily basis,” Niose said. “No child should go to public school every day, from kindergarten to Grade 12, and be faced with an exercise that portrays his or her religious group as less patriotic.’’

He added, “When we define patriotism with a religious truth claim, that the nation is in fact under a god, we define nonbelievers as less patriotic.”

The school system said in court papers that making the pledge is a voluntary act any student could choose not to participate in as the Doe children have sometimes decided to do.

Stephen Mills, superintendent of the regional school district, said he was especially heartened that the state’s highest court recognized there was no sign the children were harrassed.

The SJC noted that “the children at the center of this dispute were never harassed or discriminated against in any way,’’ Mills said proudly. “The Acton-Boxborough school system actually celebrates diversity. We see it as one of our strengths.”

Mills said taxpayers spent $60,000 on the litigation, which lasted nearly four years. He said the school system will continue the “longstanding tradition in our schools of reciting the Pledge of Allegiance.’’

In a concurring opinion, Justice Barbara Lenk agreed that the Acton couple had failed to prove their case. But, she said, the court in future could conclude that the inclusion of “under God’’ violates the equal rights of a nonbeliever.

“A reference to a supreme being, by its very nature, distinguishes between those who believe such a being exists and those whose beliefs are otherwise,’’ Lenk wrote. If it is shown 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.’’

John R. Ellement can be reached at ellement@
globe.com
. Follow him on Twitter @JREbosglobe.
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