Family, school spar in court in 'under God' suit

AP News
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Posted: Nov 19, 2014 12:34 PM

FREEHOLD, N.J. (AP) — Attorneys offered contrasting interpretations of the Pledge of Allegiance during oral arguments Wednesday in a New Jersey family's lawsuit claiming a school district is discriminating against their child's atheist beliefs.

The lawsuit focuses on the words "under God" that were added to the Pledge in 1954 and that have survived legal challenges before. Earlier this year, Massachusetts' high court ruled in a similar lawsuit that the pledge is not discriminatory.

David Niose, an attorney for the American Humanist Association who is representing the unnamed family in the New Jersey case, said the Massachusetts' court's focus on the fact that the pledge was voluntary was "simply wrong."

"Harm is occurring every day the state is invalidating the plaintiff's religious class," he said under questioning by state Superior Court Judge David Bauman.

The Aberdeen Matawan school district doesn't require that students say the pledge, and Bauman said there wasn't any evidence the student in question had been "bullied, ostracized or in any way mistreated."

But he also noted during his questioning of district attorney David Rubin that district policy requires parents whose children don't say the pledge to furnish an explanation in writing.

Rubin said he wasn't aware of any cases where parents had refused to supply an explanation and didn't know what the ramifications would be if they didn't. He accused the plaintiffs of filing a lawsuit claiming the pledge violates laws against the official establishment of religion "masquerading as an equal protection case."

The Pledge is "an innocuous reference to the deity in a ceremonial setting" and not a religious exercise, he told Bauman. Since courts have ruled the Pledge does not establish a religion, he said, "then you're left with something going on in school that offends their religious sensibilities."

Allowing the suit to go forward would be akin to students taking days off for religious holidays but suing because the school stayed open for other students, Rubin said.

Bauman didn't issue a ruling on the district's motion to dismiss the lawsuit but said he expected to issue one shortly.

Bauman, a nominee by Gov. Chris Christie for the state Supreme Court whose nomination expired before being taken up by the Legislature, probed both sides with hypotheticals, including whether substituting the phrase "under God" with "created by great white men" would create grounds for discrimination suits by women and minorities.

He asked Niose whether New Jersey's constitution, which mentions "Almighty God" in its preamble, could be considered discriminatory, and pointed out that the Pledge of Allegiance doesn't mention a specific god.

"This is a state-sponsored and state-conducted exercise that happens every single day," Niose argued. "It's done every single day, for every student in all classrooms. It's not like a biology lesson or a sex education class or a controversial novel a class will have to read. It's intended to instill patriotism and to define patriotism."