We’ve known since the U.S. Supreme Court’s ruling in 1943 in the case of West Virginia State Board of Education v. Barnette that it violated the First Amendment to compel students to say the Pledge of Allegiance in public schools. But does it violate the Constitution to give students the option to say the pledge?
Last week, the Supreme Judicial Court of Massachusetts ruled that voluntary participation in reciting the Pledge of Allegiance did not violate Massachusetts’ state constitution or its antidiscrimination law, and the ruling should inform a proper understanding of the U.S. Constitution as well.
Two anonymous students sued to stop their school district from allowing schoolchildren to recite the pledge. If you’re skeptical about whether the anonymous students were being used, you might be recalling the 2004 U.S. Supreme Court case in which Michael Newdow, a perennial litigant, tried to sue on behalf of his estranged daughter.
In this case, the two anonymous students claim to be “atheists and Humanists,” and they declined to say the pledge while in school. Were they bullied as a result? No. Were they even criticized? No. As Chief Justice Roderick Ireland wrote: “The plaintiffs’ claim of stigma is more esoteric. They contend that the mere recitation of the pledge in the schools is itself a public repudiation of their religious values.”
The Massachusetts Supreme Court rightly rejected these claims, holding that “[t]he 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.”
This seems sensible. Mere offense that someone is voluntarily expressing religious views other than your own during school hours does not violate the Constitution. Indeed, as the Massachusetts Supreme Court noted, if this were the case, then the Massachusetts school condom vending machine program could be successfully challenged by traditional Christians or Jews who oppose birth control and are offended by having to see birth control in schools.
Certainly, last week’s decision is a victory for those who want to recite the Pledge of Allegiance in Massachusetts. But the troubling fact is that across the country, aggressive litigants are suing to block crosses, the Ten Commandments and other traditional accoutrements of American civic religion, purely on “offended observer” grounds. This type of easily offended litigant is not going away.