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COMMONWEALTH OF MASSACHUSETTS
Supreme Judicial Court
MIDDLESEX, ss. No. SJC-11317
JANE DOE AND JOHN DOE, INDIVIDUALLY AND As PARENTS AND NEXT FRIENDS
OF DOECHILD-1, DOECHILD-2, AND DOECHILD-3, AND THE AMERICAN HUMANIST
. ASSOCIATION, -
Plaintiffs-Appellants,
v.
ACTON-BOXBOROUGH REGIONAL SCHOOL DISTRICT, ET AL.,
Defendants-Appellees.
and •
DANIEL JOYCE AND INGRID JOYCE, AND THE KNIGHTS OF COLUMBUS,
Defendants/Intervenors-Appellees.
ON DIRECT APPELLATE REVIEW OF A JUDGMENT
OF THE MIDDLESEX SUPERIOR COURT
BRIEF OF AMICUS CURIAE COMMONWEALTH OF
MASSACHUSETTS IN SUPPORT OF DEFENDANTS-APPELLEES
MARTHA COAKLEY
Attorney General
Amy Spector, BBO # 557611
Assistant Attorney General
One Ashburton Place
Boston, Massachusetts 02108-1598
(617)963-2076
email: [email protected]
TABLE OF CONTENTS
TABLE OF AUTHORITIES, • iii
QUESTIONS PRESENTED 1
INTRODUCTION • . . . 1
STATEMENT OF INTEREST OF THE AMICUS CURIAE 4
STATEMENT OF THE CASE • 6
Statement of Facts 6
SUMMARY OF ARGUMENT 10
ARGUMENT 11
I. THE PLEDGE OF ALLEGIANCE IS •
FUNDAMENTALLY A PATROTIC EXERCISE
RATHER THAN A RELIGIOUS ONE 11
II. APPELLANTS' CLAIM, ALTHOUGH FRAMED AS
AN EQUAL PROTECTION CLAIM UNDER ARTICLE
106, IS MORE HELPFULLY ANALYZED UNDER
THE FEDERAL ESTABLISHMENT CLAUSE OR ITS
COUNTERPART IN THE MASSACHUSETTS CONSTITUTION 16
A. APPELLANTS' CLAIM SOUNDS IN
ESTABLISHMENT CLAUSE PRINCIPLES 16
B. THE PLEDGE STATUTE DOES NOT MAKE
ADHERENCE TO RELIGION RELEVANT IN ANY WAY TO A PERSON'S STANDING IN -
THE POLITICAL COMMUNITY 21
III. THE PLEDGE IS CONSTITUTIONAL UNDER
EQUAL PROTECTION PRINCIPLES 2 6
A. RECITATION OF THE PLEDGE DOES NOT
RESULT IN A CLASSIFICATION BASED
ON RELIGION ' .26
B. EVEN IF THE COURT ENGAGES IN A
"SCRUTINY" ANALYSIS, THE
APPROPRIATE LEVEL OF SCRUTINY IS
' • THE RATIONAL BASIS TEST 34
IV. RECITATION OF THE PLEDGE DOES NOT
DISCRIMINATE AGAINST STUDENTS IN
VIOLATION OF G.L. C. 76, § 5. 39.
CONCLUSION 41
ii
TABLE OF AUTHORITIES
Cases
Albright v. Oliver, 510 U.S. 226 (1994) 25
Allen V. Wright, 468 U.S. 737 (1984) 31-32
Bracket! v. Civil Service Conniaission,
447 Mass. 233 (2006) 37-38n
Brown v.. Board of Education, "
347 U.S. 483 (1954) ' 33n
Collins v. Secretary of the
Commonwealth, 407 Mass. 837 (1990) 17n
Commonwealth v. Callahan,
401 Mass. 627 (1988) . . 15
Colo v. Treasurer, 378 Mass. 550 (1979) 24n
County of Allegheny v. ACLU, '.
492 U.S. 573 (198-9) . . : ,.21-22
Croft v. Perry,
624 F. 3d 157 (5th Cir. 2010) 2n, 13, 15, 20
Dupont v. Commissioner of Correction, '
448 Mass. 389 (2007) 28n
Elk Grove Unified School District v.
Newdow, 542 U.S. 1 (2004) 13-14
Eulitt v. Main Department of Educ., . 386 F. 3d 344 (1st Cir. 2004) 25, 34, 35
Federal Coinmunications Common v. Beach
Communications, 508 U.S. 307 (1993) 28n
Federal National Mortgage -Ass'' n -v.
Hendricks, 463 Mass. 635 (2012) 41
Finch v. Commonwealth Health Insurance .
Connector Authority, 459 Mass. 655 (2011) 2n, 3, 28, 37
iii
Freedom from Religion Foundation v.
Hanover Sch. Dist., 665 F.Supp. 2d 58 (D.N.H. 2009) 30
Freedom from Religion Foundation v.
Hanover School District, 626 F.3d 1 (1st Cir. 2010), cert. denied, 131
S.Ct. 2992 (2011) passim
Goodridge v. Department of Pub. Health,
440 Mass. 309 (2003) 33n
Graham v. Connor, 490 U.S. 386 (1989) 24-25
Heckler v. Mathews, 465 U.S.' 728 (1984) 31-32
Hightower v. City of Boston,
693 F. 3d 61 (1st Cir. 2012) ' 35
Johnson v. Robison, 415 U.S. 361 (1974) 35n
.Lamb''s Chapel v. Center Moriches School 5 '
-Dist. , 508 U.S., 384 (1993) 17n
Lemon v. Kurtzman, 403 U.S. 602 (1971) 24n
Locke v. Davey, 540 U.S. 712 (2004) 11, 34-36, 38
Lynch v. Donnelly, 465 U.S. 668 (1984) 21,22
Massachusetts Bd. of Retirement v.
Murgia, 427 U.S. 307 (1976) 28n
McGuire v. Reilly,
.260 F. 3d 36 (1st Cir. 2001) 36
Myers v. Loudoun County Pub. Sch.,
418 F. 3d 395 (4th Cir 2005) 2n, 12-13, 20
Nestor Colon Medina & Sucesores, Inc. •
v. Custodio,
964 F. 2d 32 (1st Cir. 1992) 25-26
New Orleans v. Dukes,
427 U.S. 297 (1976) 37n
iv
Newdow v. Rio Linda Union Sch. Dist.
597 F.3d 1007 (9th Cir. 2010) 2n, 20
Opinion of the Justices
214 Mass. 599 (1913) . . 19n
Opinion of the Justices
440 Mass. 1201 (2004) . 32-33
Opinions of the Justices to the
Governor, 372 Mass. 874 (1977) . 9n, 14
Pagan v. Colderon,
448 F.3d 16 (1st Cir. 2006) 25
Parker v. Hurley,
514 F. 3d 87 (1st Cir.),
cert. denied, 555 U.S. 815 (2008) 6
Rocky Mountain Christian Church v.
Board, of County Coinmlssioners of
Boulder County, 612 F.Supp.2d 1163 (D.
Colo. 2009), affd, 613 F.3d 1229 (10th Cir. 2010), cert. denied, 131 S.Ct. 978
(2011) 36
San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1 (1973) - 27
Sherman v. Cmty. Consol. Sch. Dist. 21,
980 F.2d 437 (7th Cir. 1992),
cert. denied, 508 U.S. 950 2n, 20-21
Society of Jesus of New England v. ' ,
Commonwealth, 441 Mass. 662 (2004) 24n
Tarin v. Commissioner of the Division of Medical Assistance,
424 Mass. 743 (1997) ' 28n
West Virginia State Bd. of Educ. v.
Barnett, 319 U.S. 624 (1943) 9n
Wirzburger v. Galvin, <
412 F. 3d 271 -(Ist Cir. 2005) 29, 31n, 35-36,
37n, 38n
v
Federal Constitutional Provisions
U.S. Const. Amend. I passim
U.S. Const. Amend. II - 35
U.S. Const. Amend. IV 24
U.S. Const. Amend. XIV 19n. 28n
Massachusetts Constitutional Provisions
Mass. Const. Pt. 1, art. 1 . .' 16
Mass. Const. Pt. 1, art. 2 19n, 26n
Mass. Const. Pt. 1, art. 3 19n
Mass. Const, amend, art. 106 passim
Federal Statutes
4 U. S.C. § 4 ' 9
State Statutes
G.L. c. 71, § 69 • passim
G.L. c. 76, § 5 1, 39-40
G.L. c. 151B, § 4 (1A) 17n
Miscellaneous
Opinion of the Attorney General, Rep.
A.G., Pub. Doc 12, at 170 n.l (1977) 9
vi
QUESTIONS PRESENTED
I. Whether the Superior Court correctly held
that daily recitation of the Pledge of Allegiance in
the Acton public schools in a form ihcluding the words
"under God" does not violate plaintiffs'-appellants'
rights under Massachusetts Declaration of Rights '
Article 1, as amended by Article 10 6, where students'
participation in reciting the Pledge is entirely
voluntary, and where, under the terms of the governing
statute, students' choices whether or not to recite
the Pledge have no effect on their legal rights or
duties and the statute thus does not impose any
classification based on religion or otherwise?
II. Whether the Superior Court correctly held
that daily recitation of the Pledge of Allegiance also
does not violate G.Ir. c. 76, § 5, which prohibits
discrimination against any person in-obtaining the
advantages of study in public schools?
INTRODUCTION
Appellants argue that recitation of the Pledge of
Allegiance, by virtue of the words "under God,"
reflects governmental "affirmation" of one particular
religious outlook (a belief in God) and a
corresponding "disapproval" of appellants' religious
viewpoint (atheism). Appellants contend that
recitation of the Pledge thus causes them to be
"marginalized" and to feel like "outsiders."
Such arguments, which have been presented in
numerous cases in the form of First Amendment claims
under the Establishment Clause of the Federal
Constitution, have been universally rejected by the
federal circuit courts that have considered them, in
particular the United States Court of Appeals for the
First, Fourth, Fifth, Seventh, and Ninth Circuits.1
Apparently recognizing that they therefore would be
unlikely to prevail if they framed their claim here as
an Establishment Clause claim, appellants instead
challenge the Pledge under Article 106 of the
Amendments to the Massachusetts Constitution (also
known as the Equal Rights Amendment).2 They contend
1 Freedom from Religion Foundation v. Hanover School
District, 626 F.3d 1 (1st Cir. 2010), cert. denied,
131 S. Ct.. 2992 (2011); Croft v. Perry, 624 F.3d 157 (5th Cir. 2010); Newdow v. Rio Linda Union Sch. Dist.,
597 F.3d 1007 (9th Cir. 2010); Myers v. Loudoun County
Pub. Sch., 418 F.3d 395 (4th Cir. 2005); Sherman v.
Cmty. Consol. Sch.. Dist. 21, 980 F.2d 437 (7th Cir.
1992), cert. denied, 508 U.S. 950 (1993).
2 Article. 106, which was adopted in 197 6 to replace
Article 1 of the Massachusetts Declaration of Rights,
sets "forth a right to equal protection of the laws.
Finch v. Commonwealth Health Insurance Connector • (footnote continued)
2 •
that recitation of the Pledge discriminates against
their religious views in violation of Article 106, and
they attempt to invoke the "strict scrutiny" standard
that this Court has found applies to claims of
discrimination based on the classifications enumerated
there, namely sex, race, color, creed, or national
origin. Finch v. Commonwealth Health Insurance
Connector Authority, 459 Mass. 655, 662 (2011).
But appellants' claim, at bottom, rests on
principles directly governed by the First Amendment
and corresponding Massachusetts constitutional
provisions, and analyzing it as such provides helpful
guidance in demonstrating why appellants' equal
protection claim lacks merit. In particular, for the
same reason that federal courts have rejected this
kind of claim when expressly asserted under the
Establishment Clause - namely/ that recitation of the
Pledge on a voluntary basis does not constitute an
establishment or affirmation of any particular
(footnote continued)
Authority, 459 Mass. 655, 662 (2011) ("This court
traditionally has located a right to equal protection
under art. 1 and, thus under its successor, art.
106."). See also id. at 666 (Article 106 was
popularly known at the time of its enactment as the Equal Rights Amendment). '
3
religious views - the Pledge statute (and a student's
decision whether to recite the Pledge) also do not
result in any "classification" of students. See
Freedom from Religion Foundation, 626 F.3d at 11
(students "are not religiously differentiated from
their peers merely by virtue of their non-
participation in the Pledge") (emphasis in original).
The Court thus may reject appellants' equal protection
claim without even engaging in a "scrutiny" type
analysis. .
Moreover, insofar as recitation of the Pledge
does not constitute an establishment of religion under
First Amendment principles, the Court if it chooses to
engage in a scrutiny-type analysis need only apply a
rational basis test, under the rationale of Locke v.
Davey, 540 U.S. 712 (2004), where the Supreme Court,
having rejected plaintiffs' First Amendment claim,
applied only rational basis scrutiny to a related
equal protection claim. '
STATEMENT OF INTEREST OF THE AMICUS CURIAE
Appellants challenge the practice of voluntary
recitation of the Pledge of Allegiance pursuant to
G.L. c. 71, § 69. Because the statute as applied on a
voluntary basis is constitutional, and because Acton's
4
practice of providing for voluntary recitation of the
Pledge occurs pursuant to the statute, the
Commonwealth has a substantial interest- in presenting
legal arguments in support of Actdn in this appeal.3
In particular, the Commonwealth has a substantial
interest in the orderly development and application of
state equal protection doctrine, including an interest
in ensuring that statutes that make no classification
at all (because they have no effect on any person's
legal rights or duties) are not subjected to the
traditional "scrutiny" analysis applied to statutes
that do make such classifications. The Commonwealth
also has an interest in ensuring that classroom
presentation in schools throughout Massachusetts is
not unduly constrained by constitutional challenges,
.such as appellants', which rest on the theory that
students or their parents have a legal right under the
3 In Superior Court, plaintiffs-appellants sought a
declaration that recitation of the Pledge in a form
including the words "under God," whether pursuant to
G.L. c. 71, § 69, or otherwise, is unconstitutional, see A. 16, 18, 20-21 (Amended Compl., Request for
Relief); the Superior Court declared that recitation
of the Pledge is constitutional. A. 231. While
appellants have not directly attacked the
constitutionality of the statute itself, the issues
presented here obviously bear on the validity of the
statute as applied on a voluntary basis throughout the Commonwealth. A. 208.
5
equal protection clause to prevent the presentation of
material, even on a purely voluntary basis, that they
may find disagreeable. Cf. Parker v. Hurley, 514 F.3d
87, 106 (1st Cir.) (rejecting free exercise and due
process claims challenging school curriculum materials
and stating that "[pjublic schools are not obligated
to shield individual students from ideas which •
potentially are religiously offensive, particularly
when the school imposes no requirement that the •
student agree with or affirm those ideas, or even
participate in discussions about them"), cert. denied,
555 U.S. 815 (2008). "
STATEMENT OF THE CASE .
Statement of Facts
The Commonwealth adopts the Statement of the Case
and Statement of Facts set forth in the brief
submitted by appellees Acton-Boxborough Regional
School District, Town of Acton Public Schools, and
Acton Superintendent of Schools Dr. Stephen E. Mills
(collectively, "Acton"), but briefly summarizes the
facts below in order to provide a backdrop for
understanding the legal claims and to emphasize that
recitation of the Pledge of Allegiance by students is
entirely voluntary.
6
' Appellants Jane and John Doe and their children
("Doechildren"), who also are appellants, live in
Acton, where the Doechildren attend the Acton public
schools. A. 210. "The Doechildren and their parents
are atheists., denying the existence of a deity." A.
210. They also hold Humanist views, described in
affidavits submitted in Superior Court as '
a broader religious world view that'
includes, in addition to a non-theistic view
on the question of deities, an affirmative '
naturalistic outlook; an acceptance of
reason, rational analysis, logic, and'
empiricism as the primary means of attaining
truth; an affirmative recognition of ethical duties; and a strong commitment to human
rights.
A. 210-11. Appellant American Humanist Association is
a nonprofit organization that promotes Humanist views.
A. 211.4
The Pledge of Allegiance is recited on a daily
basis in public schools in the Commonwealth pursuant
to G.L. c. 71, § 69, which provides that "[e]ach
teacher at the commencement of the first class of each
day in all grades in all public schools shall lead the
4 In Superior Court, Daniel and Ingrid Joyce, parents
of two children who also attend public school in Acton, intervened as defendants, as did the Knights of Columbus, see A. 210, and the Joyces and the Knights of Columbus thus are appellees • here-. • _
7
class in a group recitation of the ''Pledge of
Allegiance to the Flag.'" G.L. c. 71, § 69, 4th
sentence. The wording of the Pledge of Allegiance,
set forth in 4 U.S.C. § 4, and incorporated by
reference in G.L. c.- 71, § 69, is as follows:
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.5
Although the statute is worded in mandatory
terms, the Superior Court found, and the parties do
not dispute, that participation in the Pledge by
students in the Acton public schools is entirely
voluntary, as is the case throughout Massachusetts.
Appendix to the Briefs ("A.") 212-14, 229; Brief of
the Plaintiffs/Appellants ("Appellants' Br.") at 10
11; Brief of the Defendants-Appellees Acton-Boxborough
Regional School District,•The Town of Acton Public
Schools, and Dr. Stephen E. Mills (Appellees' Br.") at
7 .
As the Superior Court found, "participation in
all or part of the Pledge is each student's decision,
5 General Laws c. 71, § 69, "impliedly incorporates by
reference" the wording of the Pledge of Allegiance
adopted by Congress in 4 U.S.C. § 4. , A. 223 (Superior
Court decision).
8
and the School Defendants cannot punish the
[appellant] Doechildren for choosing not to
participate." A. 214; see also A. 213 ("Plaintiffs
concede that the Doechildren's participation in the
recitation of the Pledge is voluntary"); A. 224 '
("neither G.L. c. 71, § 69, nor 4 U.S.C. § 4 compels
the Doechildren.to participate; they are free to
refrain from speaking any part of the Pledge.").6
The Doechildren regularly recite the Pledge, A.
210, but, as they acknowledge here, they also "often"
exercise their right not to participate in recitation
of the Pledge. Appellants' Br. at 30 n.25. The
Doechildren and their parents assert that recitation
of the Pledge, although voluntary, "marginalizes them
by classifying them as unpatriotic." A. 212.
However, as the Superior Court found, while plaintiffs
6 As the Superior Court explained, students may not
constitutionally be compelled to salute the flag or
recite the Pledge.'" A. 214 (citing Opinion of the.
Attorney General, Rep. A.G., Pub. Doc 12, at 170 n. 1 (197 7); see also Opinions of the Justices to the
Governor, 372 Mass.- 874, 880 (1977) (declining to
address whether proposed amendment to G.L. c. 71,
§ 69, providing for recitation of Pledge, would
violate students' constitutional rights, but noting
that under West Virginia State Bd. of Educ. v.
Barnette, 319 U.S. 624 (1943), "no punishment of any kind may be imposed on a student who elects, as a
matter of principle, to abstain from participation.").
9
believe that "society does not view atheists.' in a
favorable light," they "do not claim that their
atheist and Humanist views have caused others to
single them out personally in a negative way," A. 212
n.9, let alone that they have suffered any change in
legal rights or duties as- a result of the Pledge'
statute or their choices concerning recitation of the
Pledge.
SUMMARY OS1 ARGUMENT
The Pledge of Allegiance is a patriotic exercise
rather than a religious one.' (pp. 11-16) Although
appellants frame their challenge to the Pledge as an
equal protection claim, the theory on which their
claim rests more'naturally falls within Establishment
Clause jurisprudence, which therefore provides useful
guidance in analyzing appellants' equal protection .
claim. (pp. 16-21) Cases rejecting similar
challenges to the Pledge under•the Establishment
Clause demonstrate that appellants' equal protection
claim also lacks merit, because the Pledge does not
favor any students or disfavor others based on their
religious beliefs, .(pp. 21-26)
Because the Pledge statute, and students' choices
whether to recite the Pledge, do not have any effect
10
on students' legal rights or duties, the statute does
not constitute a classification at all, and the Court
thus should 'reject appellants' equal protection claim
without engaging in any scrutiny analysis at all.
(pp. 26-33) If the Court determines to apply a
scrutiny-type analysis, the proper test is the
rational basis standard, under the reasoning of Locke
v. Davey. (pp. 3 4-39) .
The Pledge also does not violate G.L. c. 76, § 5,
because students' Pledge-related choices have no
bearing on their access to the advantages of public
schools. (pp. 39-41)
ARGUMENT
I. THE PLEDGE OF ALLEGIANCE IS FUNDAMENTALLY A
. PATROTIC EXERCISE RATHER THAN A RELIGIOUS ONE.
Before discussing in Argument sections II and III
below why appellants' equal protection claim lacks
merit, the Commonwealth sets forth here a brief
discussion of the manner in which courts have viewed
the Pledge and the significance to be given to the
words "under God" within it. Such a review may be
helpful in disposing of appellants' equal protection
claim, which is based on the erroneous
characterization of the Pledge as constituting an
11
endorsement of one particular set of religious
beliefs. 1
While acknowledging that recitation of the Pledge
pursuant to G.L. c. 71, § 69, is "part of a ceremony
intended to instill values of patriotism and good '
citizenship," appellants explain that they "do not
believe any country is "'under God.'" Appellants' Br.
at 7, 8. They argue that inclusion of the words
"under God" in the Pledge therefore reflects "a strong
favoritism for one religious creed (and by' necessary
implication, disapproval of others)." Appellants' Br.
at 3. ,
But all of the federal circuit courts that have
•confronted challenges to the Pledge have upheld the
Pledge under the Establishment Clause, reasoning that
the words "under God," while having some religious
meaning, do not thereby transform the Pledge from what
is fundamentally a patriotic exercise into a religious
one. As the Fourth Circuit Court of Appeals
thoughtfully observed, while upholding the
constitutionality of Virginia's voluntary Pledge
statute, "[u]ndoubtedly, the Pledge contains a
religious phrase, and it is demeaning to persons of
any faith to assert that the words ''under God' contain
12
no religious significance." Myers, 418 F.3d at 407.
Yet the court in Myers went on to conclude that "[t]he
inclusion of those two words, however, does not alter
the nature of the Pledge as a patriotic- activity. The
Pledge is a statement of loyalty to the flag of the
United States and the Republic for which it stands; it
is performed while standing at attention, facing the
flag, with right hand held over heart." Id.
.(emphasis in original); see also id. ("[a] prayer, by
contrast, is ^a solemn and humble approach to Divinity
in word or thought.'").7
Likewise, while "[t]he Supreme Court has never
directly addressed the constitutionality of the
national pledge, . . . [it] has suggested in dicta,
time and again, that the pledge is constitutional."
Croft v. Perry, 624 F.3d 157, 164 (5th Cir. 2010)
(citing, among other cases. Elk Grove Unified School
District v. Newdow, 542 U.S. 1, 6 (2004), where the
7 See also Freedom from Religion Foundation, 626 F.3d at 10-14 (acknowledging that "the phrase ^under God' -
has some religious content" and stating that "mere
repetition of the phrase in secular ceremonies does
not by itself deplete the phrase of all religious
content," but proceeding to find that New Hampshire's
voluntary Pledge statute did not violate the
Establishment Clause, Free Exercise Clause, or Equal
Protection Clause).
13
Court, although disposing of the case based on lack of
standing, described the nature of the Pledge as a
primarily patriotic ceremony: "the Pledge of
Allegiance evolved as a common public acknowledgment
of the ideals that our flag symbolizes. Its
recitation is a patriotic exercise designed to foster
national unity and pride in those principles."). See
also Opinions of the Justices to the Governor, 372
Mass. 874, 879 (1977) (Legislature's purpose in
requiring teachers to lead students in recitation of
Pledge was "to instill attitudes of patriotism and
loyalty in those students"). '
Concluding that the Pledge is constitutional -
whether under the Establishment Clause or under equal
protection principles - thus does not require a court
to treat the phrase "under God" as devoid of religious
meaning. See, e.g.. Freedom from Religion Foundation,
626 F.3d at 7-8 ("That the phrase ''under God' has some
religious content, however, is not determinative of
the New Hampshire Act's constitutionality," because
"the Constitution does not require complete separation
of church and state," and "[t]he Supreme Court has
upheld a wide variety of governmental actions that
have some religious content."); id. at 14 (New
• 14
Hampshire Act does not "^give preferential treatment
to any particular religion'" and therefore does not
violate Equal Protection Clause) (internal citation
omitted). See also Croft v. Perry, 624 F.3d at 170
(rejecting challenge to voluntary Pledge statute on
Establishment Clause grounds, and stating that "[a]
pledge can constitutionally acknowledge the existence
of, and even value, a religious belief without
impermissibly favoring that value or belief, without
advancing belief over non-belief, and without coercing
participation in a religious exercise."); cf.
Commonwealth v. Callahan, 401 Mass. 627, 638 (1988)
(oaths given to jurors and witnesses, containing the
words "so help me God," do not constitute an -
establishment of religion but rather are an example of
"many permissible, secular ^references to the Almighty
that run through our laws, our public rituals, [and]
our ceremonies.''") (internal citation omitted).
After extensively reviewing the history of the
Pledge under federal and Massachusetts law, the .
Superior Court here similarly concluded, correctly,
that "the insertion of ^under God' into the Pledge has
not converted it from a political exercise" into "a
prayer"; "the Pledge is not a religious exercise, and,
15 .
in that context, the daily recitation of "^under God'
does not constitute an affirmation of a ^religious
truth.'" A. 223-24; id. at 224 (quoting with approval
the statement in Freedom from Religion Foundation, 62 6
F.3d at 10, that "[i]n reciting the Pledge, students
promise fidelity to our flag and our nation, not to
any particular God, faith, or church."). •
II. APPELLANTS' CLAIM, ALTHOUGH FRAMED AS AN EQUAL
PROTECTION CLAIM UNDER ARTICLE 106, IS MORE
HELPFULLY ANALYZED UNDER THE FEDERAL
ESTABLISHMENT CLAUSE OR ITS COUNTERPART IN THE
MASSACHUSETTS CONSTITUTION.
A. APPELLANTS' CLAIM SOUNDS IN ESTABLISHMENT
CLAUSE PRINCIPLES.
Appellants frame their challenge to recitation of
the Pledge as an equal protection claim under Article
106, which provides:
• All people are born free and equal and - have
. certain natural,•essential and unalienable rights; among which may be reckoned the
right of enjoying and defending their lives'
and liberties; that of acquiring, possessing
'and protecting property; in fine, that of . seeking and obtaining their safety and
happiness. Equality under the law shall not be denied or abridged because-of sex, race, color, creed or national origin.
Mass. Const. Pt. 1, art. 1, as amended by Mass. Const.
16
amend, art. 10 6.8
But appellants' claim, although couched in equal
protection terms, sounds in- the principles governing
the Establishment Clause and parallel Massachusetts
constitutional provision, and, beginning by analyzing
it as such provides helpful guidance in illustrating
that the claim also lacks merit as an equal protection
claim.
The gist of appellants' claim is that recitation
of the Pledge favors one set of religious beliefs -
namely, a belief in God - while disfavoring the
religious beliefs of appellants, who are atheists.
Appellants thus alleged in the complaint that, by
providing for recitation of the Pledge, Acton
discriminated against them by "creating an official
8' Although the term "creed" sometimes is used
separately from "religion," see-, e.g., G.L. c. 151B,
§ 4(1A) (prohibiting employment discrimination based
on "creed or religion"), none of the parties disputes
that "creed" as used in Article 106 encompasses '
religion; case law reflects that "creed" commonly is
understood to include religious beliefs. See, e.g..
Lamb's Chapel v. Center Moriches School Dist., 50 8
U.S. 384, 395 (1993) (church's use of school premises
after school hours to show religiously-oriented film
that was open to the public did not constitute an
endorsement of "religion or any particular creed"); Collins v Secretary of the Commonwealth, 407 Mass.
837, 842 (1990) (discussing former version of G.L. c.
151B and referring to "religious creed").
17
public atmosphere of disapproval of" appellants''
religious views, causing them to be "marginalized" and
suggesting that appellants "are outsiders and not
fully part of the mainstream society, and contributing
to public hostility toward" appellants' "religious
views." A. 16, 18, 20 (Amended Compl. It 40, 45, 51).
See also Appellants' Br. at 3 (recitation of the
Pledge reflects "a strong favoritism for one religious
creed (and by necessary implication, disapproval of
others), creating an environment that stigmatizes
plaintiffs and their religious class").9
This type of claim - that recitation of the
Pledge reflects "favoritism" for a particular
religious viewpoint and "disapproval" of other
religious views - falls squarely within the contours
of Establishment Clause jurisprudence. When presented
in that context, the claim has been rejected by five
federal circuit courts of appeal, all of which have
held that inclusion of the words "under God" in the
Pledge does not constitute a governmental endorsement
9 They also contend that the Pledge favors theistic
students by portraying them as "patriots . . ., while
necessarily disfavoring non-theistic students such as the plaintiffs by implying they are less patriotic or
even unpatriotic." Id. at 12.
18
of or preference for any particular religion and
therefore does not violate the Establishment Clause.10
See Freedom from Religion Foundation, 626 F.3d at 6
n.13 ("Every federal circuit court that has addressed
a state pledge statute has rejected the claim of
unconstitutionality.").
In Freedom from Religion Foundation, for example,
the First Circuit-held that/ under each of the
different analytical approaches used to evaluate
Establishment Clause claims. New Hampshire's voluntary
Pledge statute was constitutional, because recitation
of the Pledge did not advance religion; it did not
constitute an endorsement of religion; and it did not
coerce students to participate in a religious
10 Under the Establishment Clause, "Congress shall make
no law respecting an establishment of religion." U.S.
Const, amend. I. ."The Establishment Clause was '•
incorporated to apply to the states by the Fourteenth Amendment." Freedom from Religion Foundation, 62 6
F.3d at 6-7. The analogous Massachusetts provision, Mass. Const. Pt. 1, art. 3, as amended by amend, art.
11, provides in part that "no subordination of any one
sect or denomination to another shall ever be
established by law."); Opinion of the Uustices, 214
Mass. 599, 601 (1913) (Amendment article 11 [amending
Declaration of Rights article 3] and Declaration of
Rights article 2 together "absolutely prohibit the enactment of any law establishing any particular
religion or restraining the free exercise of any
particular religion"). .
19
exercise. 626 F.3d at 9-14.
The other federal circuit courts that have
addressed the issue likewise have concluded that
statutes providing for voluntary recitation of the
Pledge do not violate the Establishment Clause because
they do not endorse religion or favor any particular
religious belief. Croft v. Perry, 624 F.3d 157, 166,
169 (5th Cir. 2010) (Texas statute, providing for
recitation in schools of a state version of Pledge,
including "under God," "does not favor a particular
faith" or endorse religion and thus does not violate
Establishment Clause); Newdow v. Rio Linda Union Sch.
Dist., 597 F.3d 1007, 1037 (9th Cir. 2010) (upholding
recitation of Pledge of Allegiance under Establishment
Clause, and finding that the Pledge, "a predominantly
patriotic, not a religious exercise," is "an
endorsement of our form of government, not of religion
or any particular sect"); Myers v. Loudoun County Pub.
Sch., 418 F.3d 395, 408 (4th Cir. 2005) (Virginia
statute providing for voluntary recitation of Pledge
in public schools "does not amount to an establishment
of religion" and therefore is constitutional); Sherman
v. Cmty. Consol. Sch. Dist.' 21, 980 F.2d 437, 445-48
(7th Cir. 1992) (Illinois statute that, as interpreted
' 20
by court, provides for recitation of Pledge on
voluntary basis in elementary schools, does not
violate Free Exercise or .Establishment Clause), cert.
denied, 508 U.S. 950 (1993); Sherman, 980 F. 2d at 447
(quoting statement of Justice O'Connor, concurring, in
Lynch v. Donnelly, 4 65 U.S. at 693, 'that "In God We
Trust" and other similar "government acknowledgments
of religion" "are not understood as conveying approval
of particular religious beliefs"). ' .
B. THE PLEDGE STATUTE DOES NOT MAKE ADHERENCE
TO RELIGION RELEVANT IN ANY WAY TO A
PERSON'S STANDING IN THE POLITICAL
COMMUNITY.
The First Circuit's discussion of the endorsement
analysis, which requires that a court "consider
whether .the challenged governmental action has the
purpose- or effect of endorsing, favoring, or promoting
religion," Id. at 10, is particularly helpful in
illuminating how Establishment Clause principles
provide useful guidance in showing that appellants'
equal protection claim also is without merit. The
First Circuit quoted County of Allegheny v. ACLU, 492
U.S. 573, 593-94 (1989), where the Supreme Court
explained that "[t]he Establishment Clause, at the
very least, prohibits government from appearing to
21
take a position on questions of religious belief or
from ^making adherence to a religion relevant in any
way to a person's standing in the political
community.'" (quoting Lynch v. Donnelly, 4 65 U.S. 668,
687 (1984) (O'Connor, J., concurring)); 626 F.3d at
10. See also Lynch, id. at 688 (O'Connor, J.,
concurring) (Establishment Clause prohibits government
from endorsing religion•because endorsement "sends a
message to nonadherents that they are outsiders, not
full members of the political community, and an
accompanying message to adherents that they are
insiders, favored members of the political
community") •. .
With that framework in mind, the First Circuit in
Freedom from Religion Foundation described plaintiff s
Establishment Clause claim as "its argument that those
students who choose not to recite the Pledge for
reasons of non-belief in God are quite - visibly
differentiated from other students who stand and
participate," making "the [plaintiff] Doe children
outsiders to their peer group on the grounds of their
religion." 626 F.3d at 10. But the court
emphatically rejected, as "flawed," the contention
"that children who choose not to recite the Pledge
become outsiders based on their beliefs, about
religion." 626 F.3d at 10-11. Underscoring that
"both the choice to engage in the recitation of the
Pledge and the choice not to do so are entirely
voiuntary," id. at 11, the court proceeded to explain
why recitation of the Pledge neither favors certain
students based on their religious beliefs nor
disfavors others: "
There are a wide variety of reasons why students may choose not to recite the
Pledge, including many reasons that do not
rest on either religious or anti-religious
belief.- These include political •
disagreement with reciting the Pledge, a
desire to be different, a view of our
country's history or the significance of the flag that differs from that contained in the
Pledge, and no reason at all. Even students
who agree with the Pledge may choose not to
recite the Pledge. Thus, the Doe children
are not religiously differentiated from
. their peers merely by virtue of their non-
participation in 'the Pledge.
Id. (emphasis in original).
Appellants' claim here - although framed as an
equal protection claim - falls naturally within the
rubric of the Establishment Clause and, indeed, it is
strikingly similar to the Establishment Clause claim
that the court rejected in Freedom from Religion
Foundation. See A. 16, 18, 2 0 (Amended Compl. Hi 40,
45, 51) (recitation of the Pledge reflects
23
"disapproval" of appellants' religious views,
"suggesting that the Plaintiffs are outsiders.").
This Court, in addressing appellants' egual protection
claim, thus may be guided by the reasoning of the
federal cases cited above.11 '
In making use of Establishment Clause principles
to help guide its analysis of appellants' equal
protection'claim, the Court would be acting in '
accordance with the principle that, where a more ,
specific constitutional provision is directly on
point, a court should apply the legal standards
governing that provision rather .than treating the
claim under a more general (but less applicable)
constitutional provision. See Graham v. Connor, 490
U.S. 386, 395 (1989) ("Because the Fourth Amendment
11 In analyzing claims under the Massachusetts
Constitution, courts follow the same standards used in
interpreting the Establishment Clause. Society of
Jesus of New England v. Commonwealth, 441 Mass. 662,
674 (2004) (discussing standard for resolving federal Establishment Clause claim and stating that "[w]e
apply the same criteria for purposes of State .
constitutional analysis."); Colo v. Treasurer, 378
Mass. 550, 558 (1979) (criteria established by Supreme
Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), to
resolve Establishment Clause claims under First
Amendment, "are equally appropriate to claims brought under cognate provisions of the Massachusetts Constitution").
2 4
provides an explicit textual source of constitutional
protection against this sort of physically intrusive
governmental conduct, that Amendment, not the more
generalized notion of ''substantive due process,' must
be the guide for analyzing these claims [alleging that
police officers used excessive force]"). See also
Albright v. Oliver, 510 U.S. 266, 288 (1994) (Souter,
J., concurring) (Court Mhas resisted relying on the
Due Process Clause when doing so would have duplicated
protection that a more specific constitutional
provision already bestowed"); Pagan v. Calderon, 448
F.3d 16, 36 (1st Cir. 2006) (to extent plaintiff
challenging discretionary decision'to deny a benefit
alleges unconstitutional political discrimination, "he
cannot rely on the Equal Protection Clause but,
rather, must bring his claim under the specific
provisions of the First Amendment"); Eulitt v. Maine
Department of Educ., 386 F.3d 344, 353-44 (1st Cir.
2004) (appellants, who alleged that statute
discriminated against them based on religion, "attempt
to position this harm under the rubric of equal
protection, avoiding any detailed reference to the
Free Exercise Clause," but "[t]his crabbed approach
will not wash"); Nestor Colon Medina & Sucesoresy Inc.
25
v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992) ("given
the overlap,of [plaintiff's First Amendment and equal
protection claims], we see little basis or
justification for applying equal protection analysis
in the present situation") .12 '
For related reasons, in the event that the Court
chooses to apply a traditional "scrutiny" analysis to
appellants' equal protection claim, the Court need
only apply a rational basis test, see infra pages 34-
39 (although, as argued immediately below, the Court
should dispose of appellants' equal protection claim
without engaging in a- scrutiny-type analysis at all) .
III. THE PLEDGE IS CONSTITUTIONAL UNDER EQUAL
PROTECTION PRINCIPLES.
A. RECITATION OF THE PLEDGE DOES NOT RESULT IN
A CLASSIFICATION BASED ON RELIGION.
Even-if appellants' Article 106 equal protection
claim is viewed as entirely distinct from a claim
12 Appellants' claim that recitation of the Pledge constitutes "disapproval" of their views also might be
understood as asserting a claim under the federal Free
Exercise Clause and Massachusetts' free exercise
provision. Declaration of Rights art. 2. Compare
Freedom from Religion Foundation, 626 F.3d at 14
(explaining that under Free Exercise Clause,
government may not "lend its power to one side or the
other in controversies over religious authorities or dogma," and holding that recitation of the Pledge did not violate plaintiffs' free exercise rights).
26
resting on Establishment Clause principles, the
Article 106 claim fails for the same reason that
courts have held that recitation of the Pledge does
not amount to an establishment of religion - namely,
that the Pledge does not favor one religious set of
beliefs over another. In-equal protection parlance, •
because the Pledge statute does not treat students
differently based on their religious beliefs and thus
does not result in any classification based on
religion, the Court should hold that appellants' claim
under Article 10 6 fails, and the Court may do so
without engaging in the sort of "scrutiny" analysis
that appellants urge.
"Unlike other provisions of the Constitution, the
Equal Protection Clause confers no substantive rights
and creates no substantive liberties. The function of
the Equal Protection Clause, rather, ,is simply to
measure the validity of classifications created by
state laws." San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 59 (1973) (Stewart, J.,
concurring) (emphasis in original).13 This Court has
13 Under well-established case law, "a statutory
classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights
(footnote continued)
27
likewise recognized that a threshold determination in
considering an equal.protection claim is whether the
challenged governmental action constitutes a
classification at all. Finch, 459 Mass. at 676
(^[T]he right to equal protection recognizes that the
act of classification is itself invidious and is thus
constitutionally acceptable only where it meets an
exacting test.").14- '
Because recitation of the Pledge under G.L. c.
71, § .69, does not constitute a classification based
on religion (or any other characteristic, for that
(footnote continued) .
must be upheld against equal protection challenge" if there is a rational basis for the classification.
Federal Communications Common v. Beach Communications,
508 U.S. 307, 313 (1993). However, where a
legislative "classification impermissibly interferes
with the exercise of a fundamental right or operates
to the peculiar disadvantage of a suspect class,"-a
court must apply "strict scrutiny" in determining the
constitutionality of the classification.
Massachusetts Bd. of Retirement v. Murgia, 427 U.S.
307, 312 (1976).
14 See also Tarin v. Commissioner of the Division of Medical Assistance, 424 Mass. 743, 755 (1997) (equal protection clauses of Fourteenth Amendment to Federal Constitution and Mass. Const, art. 1, as amended by
art. 106, "Mo not protect against burdens and
disabilities as such but against their unequal imposition.'") (internal citation omitted); Dupont v. Commissioner of Correction, 448 Mass. 389, 399 (2007) (to establish an equal protection claim, a plaintiff
must allege that persons "similarly situated in all
relevant respects" are treated differently).
28
matter), the Court may reject appellants' equal
protection claim without having to engage in the
strict scrutiny analysis that appellants urge. The
First Circuit took such an approach in Freedom of
Religion Foundation, where the court rejected the
equal protection claim asserted by the plaintiffs, who
had argued that the defendant'school districts were
violating "a duty to show equal respect for the Does'
atheist and agnostic beliefs" by "affirming that God
exists" and. "creat[ing] a social environment that
perpetuates prejudice against atheists and agnostics."
62 6 F.3d at 15.15 The court held that "the New
Hampshire Act does ''not require different treatment of
any class of people because of their religious '
beliefs, ' nor does it ''give preferential treatment to
any particular religion." Id. (quoting-Wirzburger v.
Galvin, 412 F.3d 271, 283 (1st Cir. 2005), cert.
denied, 546 U.S. 1150 (2006)). "Rather, 'as the
district court found, ''it applies equally to those who
15 Appellants here use similar language to express
their Article 106 claim. See Appellants' Br. at at 29
("daily classroom practice of affirming that our
nation is ''under God' perpetuates the invidious
stereotype that atheists are ''un-American' " and
"contributes to existing prejudices against
atheists."). •
29
believe in God, 'those who do not, and those who do not
have a belief either way, giving adherents of all
persuasions the right to participate or not
participate in reciting the pledge, for any or no
reason.''" Id. (quoting Freedom from Religion ,
Foundation v. Hanover Sch. Dist., 665 F.Supp.2d 58, 72
(D.N.H. 2009)). On that basis - and without
evaluating the Pledge statute under any "scrutiny"
standard - the First Circuit concluded that "FFRF's
equal protection claim fails." Id.
Appellants suggest that the brevity of the First
Circuit's discussion of the equal protection claim in
Freedom from Religion Foundation limits the usefulness
of the case. See Appellants' Br. at 15 n.16- (noting
that the First Circuit devoted only "one paragraph" to
discussion of equal protection). Yet the speed with
which the First Circuit dispatched the plaintiffs'
equal protection claim is telling: sometimes one
paragraph is enough to get to the heart of a matter.
This Court should similarly reject appellants'
equal protection claim under Article 10 6 for the
simple reason that recitation of the Pledge in
Massachusetts, pursuant to G.L. c. 71, § 69, does not
constitute a classification based on religion, as
students' decision whether or not to recite the Pledge
has no effect on their legal rights or duties.
Participation in the Pledge in Massachusetts "is each
student's decision," A. 214, and "a student may choose
not to participate for a religious reason, or a non-
religious reason, or for .no reason." A. 229. As the
Superior Court correctly concluded, "[i]t follows,
then, that G.L. c. 71, § 69, does not treat students
differently but rather applies equally to all
students." A. 229.16
Appellants cite Allen v. Wright, 468 U.S. 737
(1984), and Heckler v. Mathews, 465 U.S. 728 (1984),
for the proposition that x'stigmatization alone can
constitute an Egual Protection violation," see
Appellants' Br. at 30, but the cited cases do not
actually stand for the foregoing proposition; and the
Commonwealth is unaware of a case in which a court has
found an equal protection violation based on a claim
of "stigmatization" unaccompanied by any effect on •
16 See also Wirzburger, 412 F.2d at 283 ("we do not see
how the [challenged state constitutional provisions]
draw distinctions among Massachusetts citizens based,
on a suspect classification" because "[t]hey do not '
require different treatment of any class of people
because of their religious beliefs").
31
legal rights or duties.
In Allen v. Wright, the Supreme Court, addressing
plaintiffs' claim of "stigmatization," held that the
plaintiffs, parents of black children, lacked . standing
to challenge the sufficiency of actions taken by the
Internal Revenue Service to fulfill its obligation to
deny tax-exempt status to racially discriminatory
private schools. In the course of addressing the
standing issue, the Court explained that "the
stigmatizing injury often caused by racial
discrimination" is "one of the most serious 1
consequences of discriminatory government action and
is suffitient in some circumstances to support
standing," emphasizing that "[o]ur cases make clear,
however, that such injury accords a basis for standing
only to ''those persons who are personally denied equal
treatment' by the challenged discriminatory conduct."
468 U.S. at 755 (quoting Heckler v. Mathews, 465 U.S.
at 739-40) (emphasis added).
In support of their contention that
"stigmatization alone" can violate equal protection,
appellants also cite this Court's decision in Opinion
of the Justices, 440 Mass. 1201 (2004), where the
Court held that a bill providing for same-sex couples
. 32 "
to enter into civil unions, but not marriages,
violated the state equal protection and due process
provisions. But the Court's decision in that case
does not support appellants' argument. In finding the
bill unconstitutional, the Court reasoned that the
institution of marriage provides "a status that is
specially recognized in society and has significant
social and other advantages," id. at 1208, thus '
recognizing that the bill would classify persons with
respect to their sexual orientation, denying only
same-sex couples the "significant social and other
advantages" of civil marriage. The same cannot be
said of the Pledge statute, which does not by its
terms confer or.deny any "status" or "advantage" to
students based on whether they choose to recite the
Pledge.17
17 Appellants' related attempt to invoke cases like
Brown v. Board of Education, 347 U.S. 483 (1954) and
Goodridge v. Department of Pub. Health, 44 0 Mass. 309 (2003), for the principle that "equal application of a
discriminatory law or practice does not shield it from
constitutional review," see Appellants' Br. at 30-33,
Appellants' Reply Br. at 4-5, also is unavailing.
Those cases and their ilk involved governmental
practices that, while appearing facially "neutral,"
imposed a legal constraint on persons (e.g., by
limiting which classrooms they could attend, in Brown, o.r by . limiting the category of marriage partners they
could choose, in Goodridge). In contrast, a student's (footnote continued)
33
B. EVEN IF THE COURT ENGAGES IN A "SCRUTINY"
ANALYSIS, THE APPROPRIATE LEVEL OF SCRUTINY IS THE RATIONAL BASIS TEST.
If the Court engages in a traditional "scrutiny"
analysis, the appropriate level of scrutiny to be
applied is the rational basis test,- for the same
reason that appellants' claim is most naturally
understood as falling under Establishment Clause
principles.
The Supreme Court has "clearly rejected" the
"effort to erect a separate and distinct framework for
analyzing claims of religious discrimination under the
Equal Protection Clause." Eulitt, 386 F.3d at 354
(discussing Locke v. Davey). In Locke, the Supreme
Court held that because a statute prohibiting state
aid to post-secondary students pursuing theology
degrees did not violate plaintiff s rights under the
Free Exercise Clause, the Court- would apply only
rational basis review to analyze plaintiff s related
equal protection claim. 540 U.S. at 721 n.3 ("Because
we hold . . .'that the program is not a violation of
the Free Exercise Clause, however, we apply rational-
footnote continued) • choice whether to recite the Pledge results in no such legal consequence.
34
basis scrutiny to his equal protection claims.").18'
See also Eulitt, 386 F.3d at 354 (Locke holds that "if
a challenged program comports with the Free Exercise
Clause, that conclusion wraps up the religious
discrimination analysis."). '
Based on Locke, other federal courts likewise
have found that where a challenged governmental
practice is valid under a specific Bill of Rights
provision, any related equal protection claim based on
violation of the fundamental right in the Bill of
Rights should be assessed under only a rational basis
standard. Hightower v. City of Boston, 693 F.3d 61
(1st Cir. 2012) (Massachusetts statute governing
firearms licensing did not'violate Second Amendment,
and, "[g]iven that the Second Amendment challenge
fails, the equal protection claim [challenging
revocation of plaintiffs firearms license] is subject
to rational basis review."); Wirzburger v. Galvin, 412
18 The Court cited • Johnson v. Robison, 415 U.S. 361,
375 n.14 (1974), where the Court had held that because "the Act- [providing educational benefits to veterans-
and excluding conscientious objectors] does not
violate appellee's right of free exercise of religion,
we have no occasion to apply to the challenged
classification a standard of scrutiny stricter than ' the traditional rational-basis test," and further
finding that conscientious objectors were not a
"suspect" class. Id.
35
F.3d at 282-83 (because challenged state
constitutional provision [the "Religious Exclusion"]
"does not violate the Free Exercise Clause, we apply
rational basis scrutiny to the fundamental rights-
based claim that this exclusion violates equal
protection"); McGuire v. Reilly, 260 F.3d 36, 49-50
(1st Cir. 2001) (where restriction on free speech is
valid under First Amendment, it "necessarily passes
the rational basis test employed under the Equal
Protection Clause."); Rocky Mountain Christian Church
v. Board of County Commissioners of Boulder County,
612 F.Supp.2d 1163, 1185 (D. Colo. 2009) ("when
discrimination affecting free exercise rights is the
primary issue, equal.protection analysis takes a back
seat") (citing Locke), aff d, 613 F.3d 1229 (10th Cir.
2010), cert. denied, 131 S.Ct. 978 (2011).
Following Locke, this Court, too, should find
that appellants' equal protection claim is subject
only to the rational basis standard. The fact that'
appellants here have framed their equal .protection .. ....
claim by alleging discrimination based on a "suspect
class" does not automatically entitle them to the
strict scrutiny standard that (as appellants correctly
note) this Court has held applicable to claims
36 - '
challenging legislation,that classifies based on the
"suspect" criteria identified in Article 106. Finch^
459 Mass. at 662 (Article 106 "removes the first step
- determination whether a classification is suspect -
from equal protection analysis and mandates strict
scrutiny of the enumerated classifications" set forth
in art. 106, namely, sex, race, color, creed, or
national origin).
Rather, appellants' claim of religious
discrimination under Article 106, based on the theory
that the government may not act to affirm one
religious denomination and disfavor another, should be
recognized for what it is: a fundamental rights-based
equal protection claim that the Pledge interferes with
rights protected under the Establishment Clause.19 As
19 There is no merit to appellants'' contention that
federal case law addressing equal protection '
principles is "inapplicable" because Article 106 expressly recognizes religion as a suspect class,
while federal law is less clear on this score.
Appellants' Br. at 27 & n.21. See also Wirzburger,
412 F.3d at 283 n.6 (suggesting that Supreme Court has
not definitively determined- that religion is a suspect
classification); New Orleans v. Dukes, 427 U.S. 297,
303 (1976) (suggesting, but not deciding, that religion is an "inherently suspect distinction").
Regardless of whether Article 106 imposes a higher level of scrutiny than the Federal Constitution for '
suspect classification claims based on religion,
Massachusetts courts apply the same basic analytical . . (footnote continued)
37
such, and notwithstanding that appellants seek to
invoke the protection of a "suspect" class, their
equal protection claim should be analyzed under a
rational-basis standard under the reasoning of Locke.20
In this case, the Superior Court, followed a
different analytical approach to arrive at the same
conclusion, holding that because the Pledge does not
entail "^different treatment of any class of people
(footnote continued)
framework to state equal protection claims as applies
to federal equal protection claims. See, e.g.,
Brackett v. Civil Service Commission, 447 Mass. 233,
243 (2006) ("The standard for equal protection analysis under our Declaration of Rights is the same
as under the Federal Constitution."). This Court thus
may_..f_o_l.l_Q_w_t.he_.rationale.. of. L.QC_ke__Ln__applying. Article
106, because regardless of appellants'
characterization of their claim, it is best understood
as a fundamental rights-based claim under First
Amendment principles.
20 In Wirzburger, the First Circuit suggested that
Locke should be understood to apply the rational-basis
standard "only to the extent that the related equal '
protection claims are based on a theory that the law
or governmental action in question" interferes with a fundamental constitutional right; "[ojther types of
equal protection claims may have independent force, and must be considered accordingly," in particular, -
claims asserting that a legislative enactment
classifies based on a suspect class. 412 F.3d at 283
n.5. Here, however, appellants' "suspect
classification" claim does not have "independent
force" because, 'regardless of how they characterize
it, their claim at bottom rests on a fundamental
rights-based theory, i.e., the notion that the Pledge endorses a belief in God in violation of First Amendment principles.
38
because of their religious beliefs,'" it does not
create a classification based on suspect criteria and
therefore need only satisfy the rational basis test.
•A. 226-27. .
Regardless of which analytical approach this
Court follows, in the event that the Court proceeds to'
apply a scrutiny analysis, it should find that the
rational basis standard applies to appellants' Article
10 6 claim and thus should conclude, for the same
reasons found by the Superior Court, that the Pledge
satisfies the rational basis test. A. 228-29
(recitation of Pledge, which acknowledges Founding
Fathers'' philosophy and the historical and religious
traditions of the nation, is rationally related to
Legislature's constitutional and statutory obligation
to inculcate principles of humanity and benevolence
and to promote civics and prepare students for duties
of citizenship).
IV. RECITATION OF THE PLEDGE DOES NOT DISCRIMINATE
AGAINST STUDENTS IN VIOLATION OF G.L. C. 76, § 5.
For the same reasons that recitation of the
Pledge does not violate the Establishment Clause or
appellants' equal protection' rights, it also does not
violate G.L. c. 76, § 5, which provides that "[n]o
39
person shall be excluded from or discriminated against
. . . in obtaining the advantages, privileges and .
courses of study of such public school on account of .
. . religion." '
In particular, just as the Pledge statute and
students' Pledge-related choices do not result in
classification of students in any manner, students'
choices about whether or not to recite the Pledge
have no bearing on their access to any of the
"advantages" or "privileges" of public schools. See
A. 230 (holding that G.L. c. 71, § 69, "does not
violate G.L. c. 76, § 5 . . . for the same reasons as
set forth above in the context of the Plaintiffs'
equal protection claim," and further finding that
because "the Pledge does not constitute a daily
affirmation of any religion's views, . . . then
choosing not to participate in the voluntary daily
recitation does not deny the Doechildren an advantage
and privilege of their education on the basis of
religion.") . ...
The Superior Court's conclusion that the Pledge
provision in G.L. c. 71, § 69, does not violate G.L.
c. 76, § 5, also is consistent with the well-
established principle that statutes should be
40
construed in a harmonious manner. See, e.g.. Federal
National Mortgage Ass'n v. Hendricks, 463 Mass. 635,
641 (2012) ("A[W]here two or more statutes relate to
the same subject matter, they should be construed
together so as to constitute a harmonious whole
consistent with the legislative purpose.'") (internal
citation omitted).
CONCLUSION
For the foregoing reasons, the Court should
affirm the judgment of the Superior Court.
Date: August 20, 2013 .
CERTIFICATION PURSUANT TO MASS. R. APP. P. 16(k)
I, Amy Spector , hereby certify that the
foregoing brief complies with all of the rules of •
court that pertain to the filing of briefs, including,
but not limited to, the requirements imposed by Rules
16 and 20 of the Massachusetts Rules of Appellate
Respectfully submitted
MARTHA COAKLEY ATTORNEY GENERAL
Assistant Attorney General One Ashburton Place Boston, Massachusetts 02108 (617) 963-2076 [email protected]
Procedure.
Amy (^pe'ctor
Assistant Attorney General
41
ADDENDUM
Amendment I. Freedom of Religion, Speech and Press; Peaceful Assemblage; Petition of... Page 1 of 1
GXt
Amendment 1. Freedom of Religion, Speech and Press; Peaceful Assemblage; Petition of Grievances United United States (Appro*. 2 pages)
Constitution of the United States
Annotated
Amendment I. Freedom of Religion, Speech and Press; Peaceful Assemblage; Petition
of Grievances (Refs & Annos)
U.S.C.A. Const. Amend. I-Full Text
Amendment 1. Freedom of Religion, Speech and Press; Peaceful Assemblage;
Petition of Grievances
Currentness
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.
<This amendment is further displayed in three separate documents according to
subject matter>
<see USCA Const Amend. 1, Religion>
<see USCA Const Amend. I, Speech>
<see USCA Const Amend. I, Assemblage>
U.S.C A. Const. Amend. I-Full Text, USCA CONST Amend. I-Full Text
Current through P.L 113-22 approved 7-25-13 ' , .
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Art. I. Equality of people; natural rights - WestlawNext Page 1 of 1
^V^M^/Nexf .
NOTES OF DECISIONS (1210)
IN GENERAL
PROPERTY RIGHTS Art. I Equality of people; natural rights . MassachusG^k^§3£j^!£iU;^Qi?d:^£^l of Government for the Commonwealth of Massachusetts [Annotated] (Apprax. t page} ~
Constitution or Form of Government, for the Commonwealth of Massachusetts • '
[Annotated]
Part the First a Declaration, of the Rights of the Inhabitants of the Commonwealth of '
Massachusetts
, MTG.L.A. Const. Pt. l} Art. 1
Art. I. Equality of people; natural rights
• Currentness
ART. L All people are born free and equal and have certain natural, essential and unalienable
rights; among which may be reckoned the right of enjoying and defending their lives and
' liberties; that of acquiring, possessing and protecting property; in fine,.that of seeking and
obtaining their safety and happiness. Equality under the law shall not be denied or abridged
because of sex, race, color, creed or national origin.
Notes of Decisions (1210)
M,G.LA. Const Pt. 1, Art. 1, MA CONST Pt 1, Art. 1
Current through amendments approved August 1, 2013 '
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Art. 11. Right and duty of worship; freedom of religion - WestlawNext Page 1 of 1
/KjpYt'
NOTES OF DECISIONS (146)
Art. IL Right and duty of worship; freedom of religion of Government for the Commonwealth of Massachusetts [Annotated] (Approx. 1 page)
Constitution or Form of Gpvernment for the Commonwealth of Massachusetts
[Annotated] '
Part the First a Declaration of the Rights of the Inhabitants of the Common wealth of
^ Massachusetts
M.G.L.A. Const. Pt. 1, Art. 2
Art. IL Right and duty of worship; freedom of religion .
Currentness
ART, II. It is the right as well as the duty of all men in society, publicly, and at stated seasons to
worship the SUPREME BEING, the great Creator and Preserver of the universe. And no
subject shali be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping
GOD in the manner and season most agreeable to the dictates of his own conscience; or for
his religious profession or sentiments; provided he doth not disturb the public peace, or
obstruct others in their religious worship.
Notes of Decisions (146)
M.G.L.A. Const, Pt. 1, Art. 2, MA CONST Pt. 1, Art. 2
Current through amendments approved August 1, 2013
in general
Adoption
Blasphemy
Commercial activities
Correctional institutions
Criminal prosecutions
Door-to-door evangelism
Drugs
Ecclesiastical tribunals
Employment
Federal freedom of religion, generally
Home schools .
Internal affairs of church
Legislative chaplains
Local and special laws
Medical matters
Meditation or prayer, school practices
Nature and extent of rights
Official oaths
Parental rights
Persons protected
Pledge of allegiance, school practices
Prayer or meditation, school practices
Prisons and prisoners
Production of documents
School practices
Sincerity of belief
Tax exemptions
Will provisions
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Art. III. Public worship; religious teachers - WestlawNext Page 1 of 1
v f. ; J ^tlA L
NOTES OF DECISIONS (22)
Art. III. Public worship; religious teachers of Government for the Commonwealth of Massachusetts [Annotated] (Approx. 2 pages)
Constitution or Form of Government for the Commonwealth of Massachusetts "
[Annotated]
Part the First a Declaration of the Rights of the Inhabitants of the Commonwealth of
Massachusetts
Art. III. Public worship; religious teachers
M.G.U.A. Const. Pt. 1, Art. 3
In general
Adoption of children
Commercial activities
Door-to-door evangelism
Freedom of movement
Gifts, trusts and'other property
Jurisdiction
Licenses and permits
Public health
Public teachers
Religious societies
Sunday closing
Current ness
ART. III. As the public worship of GOD and instructions in piety, religion and morality, promote
the happiness and prosperity of a people and the security of a republican government;-
therefore, the several religious societies of this commonwealth, whether corporate or
unincorporate, at any meeting legally warned and holden for that purpose, shall ever have the
right to elect their pastors or religious teachers, to contract with them for their support, to raise
money for erecting and repairing houses for public worship, for the maintenance of religious
instruction, and for the payment of necessary expenses: and all persons belonging to any
religious society shall be taken and held to be members, until they shall file with the cierk of
such society, a written notice, declaring the dissolution of their membership, and thenceforth
shall not be liable for any grant or contract which may be thereafter made, or entered into by
such society.-and all religious sects and denominations, demeaning themselves peaceably,
and as good citizens of the commonwealth, shall be equally under the protection of the law;
•- and no subordination of any one sect or denomination to another shall ever be established by
law.
RotesofDecis i ons(22)
M.G.L.A. Const. Pt. 1, Art. 3, MA CONST Pt. 1, Art. 3
Current through amendments approved August 1, 2013
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THOMSON h
Art, CVI. Equal rights - WestlawNext Page 1 of 1
- ? fc s _ i •«
'•sibi-rv-.'pJexi •
NOTES OF DECISIONS (20)
. Construction with federal laws
Discretion of court Art, CVI. Equal rights ^ ,
f e & Y i S i o f G o v e r n m e n t f o r t h e C o m m o n w e a l t h o f M a s s a c h u s e t t s [ A n n o t a t e d ] (Approx. 1 page) ^Ja r0 eC i0n
Constitution or Form of Government for the Commonwealth of Massachusetts Presumptions and burden of proof
[Annotated] ' - Selective prosecution
Articles of Amendment
M.G.LA Const. Amend. Art. 106
Art. CVL Equal rights
Currentness .
ART. CVI. Article i of Part the First of the Constitution is hereby annulled and the following is
adopted:—
• [See Pt. 1, Art. 1, for text]
Notes of Decisions (20)
M.G.L.A. Const. Amend. Art. 106, MA CONST Amend.. Art. 106
Current through amendments approved August 1, 2013
End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works.
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General Laws: CHAPTER 71, Section 69 Page 1 of 1
PART I ADMINISTRATION OF THE GOVERNMENT
(Chap te rs 1 t h rough 182 )
TITLE XII EDUCATION "
CHAPTER 71 PUBLIC SCHOOLS • '
Section 69 Disp lay o f na t i ona l f l ags ; p ledge o f a l l eg iance ; pena l t y f o r v i o l a t i on
Section 69. The school committee shall provide for each schoolhouse under its control, which
is not otherwise supplied, flags of the United States of silk or bunting not less than two feet
long, such flags or bunting to be manufactured in the United States, and suitable apparatus
for their display as hereinafter provided. A flag shall be displayed, weather permitting, on the
school building or grounds on every school day and on every legal holiday or day proclaimed
by the governor or the President of the United States for especial observance; provided, that
on stormy school days, it shall be displayed inside the building. A flag shall be displayed in
each assembly hall or other room in each such schoolhouse where the opening exercises on
each school day are held. Each 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". A flag shall be displayed in each classroom in each such
schoolhouse. Failure for a period of five consecutive days by the principal or teacher in
charge.of a schooLequipped as aforesaid to display the flag as above required, or failure for a
period of two consecutive weeks by a teacher to salute the flag and recite said pledge as
aforesaid, or to cause the pupils under his charge so to do, shall be punished for every such
period by a fine of not more than five dollars. Failure of the committee to equip a school as
herein provided shall subject the members thereof to a like penalty.
m Pr in t
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXII/Chapter71/Section69/Print 8/20/2013
General Laws: CHAPTER 76, Section 5 Page 1 of 1
PART I ADMINISTRATION OF THE GOVERNMENT
(Chap te rs 1 t h rough 182 )
TITLE XII EDUCATION
CHAPTER 76 SCHOOL ATTENDANCE
Section 5 Place o f a t t endance ; v i o l a t i ons ; d i sc r im ina t i on
[ Text of section effective until July 1, 2012. For text effective July 1, 2012, see below.]
Section 5. Every person shall have a right to attend the public schools of the town where he
actually resides, subject to the following section. No school committee is required to enroll a
person who does not actually reside in the town unless said enrollment is authorized by law
or by the school committee. Any person who violates or assists in the violation of this '
provision may be required to remit full restitution to the town of the improperly-attended public
schools. No person shall be excluded from or discriminated against in admission to a public
school of any town, or in obtaining the advantages, privileges and courses of study of such
public school on account of race, color, sex, religion, national origin or sexual orientation.
Chapter 76: Section 5. Place of attendance; violations; discrimination
[ Text of section as amended by 2011, 199, Sec. 4 effective July 1, 2012. See 2011, 199,
Sec. 9. For text effective until July 1, 2012, see above.]
Section 5. Every person shall have a right to attend the public schools of the town where he
actually resides, subject to the following section. No school committee is required to enroll a
person who does not actually reside in the town unless said enrollment is authorized by law
or by the school committee. Any person who violates or assists in the violation of this
provision may be required to remit full restitution to the town of the improperly-attended public
schools. No person shall be excluded from or discriminated against in admission to a public
school of any town, or in obtaining the advantages, privileges and courses of study of such
public school on account of race, color, sex. gender identity, religion, national origin or sexual
orientation.
m Pr in t
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXII/Chapter76/Section5/Print 8/20/2013