An atheist New Jersey family is saying the phrase ‘under God’ in the
Pledge of Allegiance is a violation of their equal protection under
state law. Previously, such lawsuits were filed in federal court.
By Harry Bruinius
NEW YORK — For the second time in a year, American atheists and
humanists are asking a state court to remove the phrase “under God”
from the Pledge of Allegiance, saying daily requirements to recite the
phrase in public schools discriminates against atheist children.
Last month, a nonbelieving New Jersey family sued its local school
district in state court, claiming the daily classroom exercise
violates the equal protection guarantees of the New Jersey
constitution, the American Humanist Association announced on Monday.
The group has joined the family as plaintiffs in the case.
Last fall, the Massachusetts Supreme Court heard similar arguments
from the humanist association, which represents another nonbelieving
family that claims laws requiring their children to recite “under God”
discriminate against their beliefs.
This new focus on state laws and state constitutions represents a
change in tactics for American atheists, who have traditionally sued
in federal courts, mostly arguing that the First Amendment of the U.S.
Constitution forbids religious expressions in civic spaces.
In the Massachusetts and New Jersey cases, however, atheists are
claiming minority status and basing their arguments on guarantees of
equal protection under the law.
“This approach, thinking of atheists as decent Americans who should
not be discriminated against, is quite frankly long overdue,” said
David Niose, legal director at the American Humanist Association.
“It’s almost as if the Establishment Clause has distracted from the
fact that this is a minority group that deserves to be treated with
Indeed, atheists, who make up about 3 percent of the population,
continue to be one of the least respected groups in the country,
according to a number of polls over the years. A 2006 study at the
University of Minnesota found that Americans rank atheists below
Muslims and recent immigrants as “sharing their vision of American
A 2012 Gallup poll found that only half of Americans would consider
voting for an atheist.
But while federal courts and First Amendment claims have mostly proven
fruitless, many atheists and humanists hope state courts — especially
in so-called blue states — will be more open to their claims.
“The states have different standards with regard to equality, as well
as a lot of other different constitutional rights,” said Niose. “So if
you’re an atheist who happens to feel that you’re being discriminated
against, it only makes sense to consider all of the alternatives.”
“If it’s very clear that some states have developed equal protection
law that really sets a high standard, then that’s obviously where we
want to go,” he continues.
Students have long had the right to opt out of reciting the pledge —
an exercise of free speech and religion, courts have said.
But in seeking minority status, atheists argue the “under God” phrase
keeps them from fully participating in civic life. The New Jersey
complaint alleges that, in opting out of the daily reciting of the
pledge, nonbelieving students are stigmatized even more.
The law’s requirement “publicly disparages plaintiffs’ religious
beliefs, calls plaintiffs’ patriotism into question, portrays
plaintiffs as outsiders and second-class citizens, and forces (the
child) to choose between nonparticipation in a patriotic exercise or
participation in a patriotic exercise that is invidious to him and his
The New Jersey school district sued by the American Humanist
Association said this new legal strategy is still the wrong forum to
address their claims of discrimination.
“All we are doing is abiding by requirements of state law, we and
approximately 590 other school districts in the state,” said David
Rubin, attorney for the school district, to the Asbury Park Press. “If
the group who’s brought this lawsuit questions the wisdom of that
policy or the legality of it, we believe their arguments are much
better directed to the state Legislature, who’s imposed this
requirement on us, rather than suing an individual school district on
But this is a question about fundamental rights, say the plaintiffs,
rather than a political issue.
“The New Jersey constitution does hold out a very high standard of
equal protection,” said Niose. “We certainly see it as a jurisdiction
that should protect atheists and humanists from this kind of
discrimination, no question about it.”