'Under God' faces new scrutiny
03:48 - Source: CNN

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Phrase "Under God" discriminates against atheist students, lawsuit says

Children don't have to say the Pledge of Allegiance, opposing lawyer says

Case will be heard on Wednesday by the Supreme Judicial Court of Massachusetts

CNN  — 

The Pledge of Allegiance is recited in classrooms across the country every morning – and because of the words “under God,” it is heard in courtrooms across the country seemingly just as often these days.

Every attempt to eliminate the mention of God has thus far failed, but the Supreme Judicial Court of Massachusetts will hear arguments on Wednesday seeking removal of the two words for a new reason: discrimination.

“This is the first challenge of its kind” said Roy Speckhardt, the executive director of the American Humanist Association, an atheist group arguing for the plaintiffs. “We feel very confident that we have a strong case.”

That case, which was brought by an unidentified family of a student at a school in suburban Boston, will be argued on the premise that the pledge violates the Equal Rights Amendment of the Massachusetts Constitution. It is the first such case to be tried on the state level: All previous attempts have been argued in federal court on the grounds that ‘under God’ was an unconstitutional violation of the separation of church and state.

“They’re grasping at straws” said Eric Rassbach of the Becket Fund for Religious Liberty, the attorney arguing to leave the pledge as it is. “They know they would lose again if they tried it under the First Amendment, so now they are trying a new tack.”

Rassbach dismissed the discrimination claim because he said everyone has the right to opt out of saying the pledge. “This would be very different if they were forced to recite the pledge,” he said.

But that makes little difference in the eyes of Speckhardt.

“The opt-out itself is exclusionary and unpleasant” he said. “Children are left with a bad choice: either stand up and recite something against your beliefs, or opt out and be ostracized.”

The Massachusetts Supreme Judicial Court has previous high-profile and precedent-setting experience deciding cases hinging on the Equal Rights Amendment of the Massachusetts Constitution. In 2003, Massachusetts became the first state to legalize same-sex marriage with the Supreme Judicial Court’s landmark Goodridge decision.

“I think there is a reason why they chose this court” Rassbach said. “But the law is the law, and I think the court will decide that this is not discrimination, but a disagreement.”

Rassbach said he fears a loss in Massachusetts would inspire “copycat” lawsuits in the handful of other states that have similar clauses in their constitutions – a fear Speckhardt certainly didn’t assuage.

“We will absolutely be looking in other states if we should prevail.”

Nationality, identity and the pledge of allegiance