Federal courts had already declined to rule that the inclusion of the phrase ‘under God’ in the Pledge of Allegiance is unconstitutional largely on the basis that they had earlier ruled that no one could be forced to say the Pledge and thus saying it was voluntary. A new strategy had sought to eliminate it by appealing to state constitutions, with cases in Massachusetts and New Jersey already underway and others pending in other states.
But now the highest court in Massachusetts has also ruled that saying the Pledge of Allegiance is not unconstitutional on the same grounds, that it is voluntary.
The decision by the Massachusetts Supreme Judicial Court makes it likely that this state-by-state strategy will not succeed since this is about as progressive a state supreme court as you are likely to find. It was the first one that ruled in 2004 that bans on same-sex marriage were unconstitutional under their state constitution and that led to the first issuance of marriage licenses to same sex couples in the US. That ruling was seized upon by religious conservatives to rally and mobilize their supporters for that fall’s elections, leading to a wave of constitutional amendments in other states banning same-sex marriage. That anti-gay wave in now being pushed back judicially and legislatively state by state until the time when the US Supreme Court rules definitively.
But that state-by-state strategy seems to be not working for the pledge issue. I think that efforts to remove the phrase ‘under God’ should be shelved for now. The country is not ready for it and unlike in the case of same-sex marriage, the courts are clearly shying away from ordering a change. We secularists should shift our focus and energies to other issues where there is a better chance of victory.