Jane Doe v. Acton-Boxborough Reg'l Sch. Dist.

• Decision Date: 09 May 2014
• Docket Number: SJC–11317.
• Citation: 468 Mass. 64,8 N.E.3d 737
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Jane DOE & others v. ACTON–BOXBOROUGH REGIONAL SCHOOL DISTRICT & others.

468 Mass. 64
8 N.E.3d 737

Jane DOE ¹ & others ²
v.
ACTON–BOXBOROUGH REGIONAL SCHOOL DISTRICT & others.³

SJC–11317.

Supreme Judicial Court of Massachusetts,
Middlesex.

Submitted Sept. 4, 2013.
Decided May 9, 2014.

[8 N.E.3d 739]

Eric C. Rassbach, of the District of Columbia (Diana M. Verm, of the District of Columbia, & J. Patrick Kennedy, Boston, with him) for the interveners.

Geoffrey R. Bok, Boston, for the defendants.

David A. Niose, Fitchburg, for the plaintiffs.

The following submitted briefs for amici curiae:

Andrew P. Blake, David S. Petron, Judith C. Gallagher, & Christopher R. Mills, of the District of Columbia, for Steven Palazzo & others.

David A. Cortman, of Georgia, Jeremy D. Tedesco, of Arizona, & Andrew D. Beckwith for Alliance Defending Freedom & another.

Jay Alan Sekulow, Stuart J. Roth, & Colby M. May, of the District of Columbia, Erik M. Zimmerman, of Virginia, & Carly F. Gammill, of Tennessee, for American Center for Law and Justice.

Ronald A. Lindsay & Karla Grossenbacher, of the District of Columbia, for Center for Inquiry.

Thomas R. McCarthy & Brendan J. Morrissey, of the District of Columbia, Kelly J. Shackelford & Hiram S. Sasser, III, of Texas, & Gregory D. Cote for The American Legion & another.

Martha Coakley, Attorney General, & Amy Spector, Assistant Attorney General, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

[8 N.E.3d 740]

IRELAND, C.J.

This case presents two questions of State constitutional and statutory law: first, whether the daily recitation of our Nation's pledge of allegiance (pledge) in the defendants' schools violates the plaintiffs' equal protection rights under the Massachusetts Constitution, because the pledge includes the words “under God”; and second, whether the recitation of the pledge violates G.L. c. 76, § 5, which prohibits discrimination in Massachusetts public school education. We hold that the recitation of the pledge, which is entirely voluntary, violates neither the Constitution nor the statute.

1. Procedural background. The plaintiffs, Jane Doe and John Doe, commenced this action in the Superior Court challenging the practice by which the pledge is recited each morning in the public schools of the town of Acton and the Acton–Boxborough regional school district. The plaintiffs and their children are both atheists and Humanists.⁴ They alleged, among other things, that the daily recitation of the pledge violated their rights under the Massachusetts Constitution—specifically, art. 1 of the Declaration of Rights, as amended by art. 106 of the Amendments (art. 106) ⁵—because the pledge includes the words “under God.” They also alleged that the recitation of the pledge violated G.L. c. 76, § 5.^6,7 They sought declaratory and injunctive relief, including a declaration that the daily, in-school recitation of the pledge in its current form, including the words “under God,” violated their State constitutional and statutory rights; an order enjoining the defendants from continuing with the pledge in its current form or in any form that includes affirmations as to the existence or nonexistence of a deity; and a declaration that the recitation of a form of the pledge with the words “under God” omitted would not violate the Massachusetts Constitution or G.L. c. 76, § 5.⁸

All parties moved for summary judgment. A judge in the Superior Court granted the motions of the defendants and

[8 N.E.3d 741]

the interveners and denied the plaintiffs' motion. The plaintiffs appealed. We granted their application for direct appellate review, which was supported by the defendants and interveners. ⁹

2. Facts. The following facts are drawn from the summary judgment record, which in this case included numerous affidavits filed by both sides. No party contended that there were any genuine issues of material fact that precluded the granting of summary judgment.

The pledge is recited in the defendants' schools on a daily basis. The language of the pledge states: “I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.” This language is codified at 4 U.S.C. § 4 (2012).¹⁰ The pledge was first codified in 1942, but at that time it did not include the words “under God.” Those words were added to the statute in 1954, in circumstances we shall describe below.

The pledge is recited in the defendants' schools, and in schools across Massachusetts, pursuant to G.L. c. 71, § 69, which provides, in relevant part, that “[e]ach teacher at the commencement of the first class of each day in all grades in all public schools shall lead the class in a group recitation of the ‘Pledge of Allegiance to the Flag.’ ” The parties do not dispute that the flag ceremony, of which the pledge is a part, is intended to instill values of patriotism and good citizenship. Although the statute purports to impose a monetary fine on teachers who fail to lead the pledge, the parties do not dispute that the defendants' school administration does not require participation by teachers or students. The school superintendent, in his affidavit, avers that “[f]or both students and teachers, participation in the Pledge of Allegiance is totally voluntary. Any teacher or student may abstain themselves from participation in the Pledge of Allegiance for any or no reason, without explanation and without any form of recrimination or sanction.”

At the time the parties filed their cross motions for summary judgment, the Does' three children were fourteen, twelve, and ten years old. They acknowledged in their affidavits ¹¹ that “[they] understand that [they] have the right to refuse to participate in the flag-salute ceremony, but [they] want to participate in it.” They also acknowledged that “[i]n fact, usually when [their] class[es] say[ ] the Pledge [they] do participate in the ceremony (although [they] usually do not say the ‘under God’ words).” The children, as atheists and Humanists, “do not believe that the United States of America or any other country is ‘under God.’ ” They stated that

[8 N.E.3d 742]

they believe that the pledge, as recited in their schools, “suggests that all good Americans believe in God” and that others, like them, “who don't believe in God, aren't as good as others who do believe.” Jane Doe and John Doe, in their affidavits, likewise expressed concern that the recitation of the pledge “marginalizes [their] children and [their] family and reinforces [a] general public prejudice against atheists and Humanists, as it necessarily classifies [them] as outsiders, defines [them] as second-class citizens, and even suggests that [they are] unpatriotic.” They claimed that “[i]t is inappropriate for [their] children to have to draw attention to themselves by not participating, possibly leading to unwanted attention, criticism and potential bullying,” and that at their children's ages, “ ‘fitting in’ is an important psychological need.” As the motion judge noted in her memorandum of decision, however, there is no evidence in the summary judgment record 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.”

3. Discussion. a. History. We begin with a short overview of the history of the pledge. As many courts have concluded, the pledge is a fundamentally patriotic exercise, not a religious one.

The pledge first appeared in 1892 in a nationally circulated magazine for American youths. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). Its timing coincided with the 400th anniversary of Christopher Columbus's arrival in America, and with a nationwide interest in commemorating that historic occasion. Id. The magazine proposed that students recite the following words as part of a flag-salute ceremony that would take place in the Nation's schools, designed to instill a sense of national unity and patriotism: “I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible, with Liberty and Justice for all.” Id. The phrase “one Nation indivisible” was particularly meaningful at that time, in light of the fact that the country had, in its recent past, fought and survived the Civil War with the national unity intact. ¹²Id. at 6 n. 1, 124 S.Ct. 2301.

The pledge was first adopted by Congress in 1942, during World War II. Id. at 6, citing Pub. L. No. 77–623, 77th Cong., c. 435, § 7, 56 Stat. 377 (1942).¹³ The pledge was one part of a joint Congressional resolution establishing “a detailed set of ‘rules and customs pertaining to the display and use of the flag of the United States of America.’ ” Elk Grove Unified Sch. Dist., supra at 6, 124 S.Ct. 2301, quoting Pub. L. No. 77–623, supra. “This resolution, which marked the first appearance of the Pledge of Allegiance in positive law, confirmed the importance of the flag as a symbol of our Nation's indivisibility and commitment to the concept of liberty.”

[8 N.E.3d 743]

Elk Grove Unified Sch. Dist., supra at 7, 124 S.Ct. 2301.

In 1954, Congress amended the pledge to include the words “under God.” Id. See Pub.L. No. 83–396, 83d Cong., 2d Sess., c. 297, 68 Stat. 249 (1954). The amendment came during the escalation of the Cold War, and there is some indication in the legislative history that the amendment was intended to underscore that the American form of government was “founded on the concept of the individuality and the dignity of the human being,” which is grounded in “the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp.” H.R.Rep. No. 1693, 83d Cong., 2d Sess., at 1–2 (1954). The House Report acknowledges that “[f]rom the time of our earliest history our peoples and our...