"under God" upheld again

A Massachusetts state challenge to the usage of "under God" in the Pledge of Allegiance failed in the court of appeals though a concurrence noted:

To be sure, as our holding makes clear, the plaintiffs here did not successfully allege that their children receive negative treatment because they opt not to recite the words "under God," or that the inclusion of that phrase in the pledge has occasioned "the creation of second-class citizens." Goodridge v. Department of Pub. Health [same sex marriage case]. Absent such a showing, the plaintiffs' claim must fail. [citation omitted] (differential treatment is "[o]ne indispensable element of a valid equal protection claim"). But our holding today should not be construed to bar other claims that might rely on sufficient indicia of harm. Should future plaintiffs demonstrate that the distinction created by the pledge as currently written has engendered bullying or differential treatment, I would leave open the possibility that the equal rights amendment might provide a remedy.

The argument made was narrow -- an equal protection argument that was rejected because "no classification, let alone a suspect classification based on religion, created by the practice of reciting the pledge in the manner it is presently recited, voluntarily." A direct requirement to say the pledge failed in the 1940s. But, let's be honest, and note that there is a form of pressure to say it. Merely calling it "voluntary," and that "Students are free, for any reason or for no reason at all, to recite it in its entirety, not recite it at all, or recite or decline to recite any part of it they choose, without fear of punishment" is a bit much. That hasn't been held to erase coercion to say prayers, nor does lack of school punishment.

The ruling earlier cited past cases that labeled the pledge "a fundamentally patriotic exercise" and not "religious" though it might have a "religious tinge." This is a bit ironic. The mild establishment here is helped by it being a patriotic anthem. Children, via an official pledge to the symbol of the nation, are instructed to say they live "under God." This enmeshes a religious concept -- living under God -- with the state. What is "establishment" if not an official creed of this sort? If the "under Jesus" was in there, the fact it is a "patriotic exercise" won't save the day. Theism cannot be established either. Finally, "its wording as a whole, the preamble to the statute, and this nation's history -- demonstrate that it is a predominantly patriotic exercise." A look at "history" will show that "under God" was expressly included to reaffirm we are not atheistic commie types. It was only added to our national anthem in the 1950s just for that reason.

Not believing in God was in effect seen as basically anti-American. I can understand somewhat why agnostic and atheistic parents see the inclusion here as a form of stigma against their beliefs. But, the opinion had a point that given the specific claim - not a First Amendment argument (which repeatedly lost in the courts) - requires a high bar here. Various state policies clash with religious and conscientious beliefs without violating the equal protection provision cited. The usage of "under God" is far from benign, and I can see some kids being harmed in the way cited by the opening quote, but it's believable that the facts don't show it here.

I wouldn't be surprised, if they put forth a reasonable case, just not one that the courts would likely accept. Still, I think this is more clearly a religious freedom case directly, be it one that was a loser, which is probably why they went this way. Still, it requires the usual white lies at best to explain how benign this all is.