Monday, October 29, 2012

Challenging the Pledge of Allegiance in Rhode Island

The Boston Globe reports that the Massachusetts State Supreme Judicial Court has agreed to hear Doe v. Acton-Boxborough Regional School District, challenging "required daily recitation of the words 'under God' in the Pledge of Allegiance at public schools." This is a groundbreaking case because all previous attempts to challenge the offending words have previously relied on the First Amendment guarantee of religious freedom. Unfortunately, the courts have routinely either sidestepped the issue, as they did in the Elk Grove Unified School District v. Newdow when they denied that Michael Newdow had standing, or have allowed "Under God" to stand based on a dubious claim of their "ceremonial and patriotic nature" as happened in Newdow v. Rio Linda Union School District.

The case in Massachusetts is of an altogether different nature. Rather than depend upon the unfortunately weakened and under attack First Amendment, Attorney David Niose has rested his case on the Fourteenth Amendment, and the Equal Protection Clause:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Due to the vagaries of the law, what may work in Massachusetts regarding the Pledge of Allegiance and the 14th Amendment may not translate readily to other states. This is because Massachusetts has an Equal Rights Amendment in their state constitution that actually expands upon the protections of the 14th Amendment. An excellent history can be found here: The useful but overlooked Massachusetts Equal Rights Amendment.

The Supreme Judicial Court "has long held that the Massachusetts Constitution provides at least the same level of equal protection as the U.S. Constitution. Simultaneously, Massachusetts may certainly provide more expansive equal protection than exists under the 14th Amendment, and 'state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution.'" In other words, the Massachusetts state constitution grants its citizens greater protections under the law than does the United States Constitution.

It was on this basis that same-sex marriage became the law in Massachusetts, long before any of the other states could manage it. "Goodridge v. Department of Public Health confirmed that '[a]bsolute equality before the law is a fundamental principle of our own Constitution.'"

So what are the prospects of such a case taking hold here in Rhode Island? I'm no lawyer, but I would guess that such a fight here would be more difficult. I would love to hear some expert opinions, though.


  1. Thanks for addressing this important issue. I remember advocating for State ERA back in the day. I wrote my first letter to the editor of the local paper criticizing the evangelical preacher who was always quoting the Bible in his letters, suggesting his last letter should be run on the comic's page.
    Sorry, not a legal eagle.

  2. I do need to make a clarification to the above:

    The Massachusetts case currently under review is not based on the 14th Amendment, but is based only on the Massachusetts Equal Rights Amendment and a state non discrimination statute. There no federal counts of any kind which means that no federal courts will be able to review the Massachusetts Supreme Court's decision.

  3. In RI I think you could make a very strong case to be honest.

    I think Article 1 Section 2 of the RI Constitution would apply. For you see - equal protection under the law means that if I'm not Christian then I shouldn't have to say 'Under God". Even Budhists, etc. who don't have a God per se should take umbrage.