classifications based on gender, race, color, creed, and national origin considered suspect
How later courts described this case
- classifications based on gender, race, color, creed, and national origin considered suspect
Written by the judges who cited it.
The opinion
Lbnk, J.
(concurring). I concur in the result and much of the reasoning of the court’s opinion. I write separately to note my view that the presence of the phrase “under God” in the pledge of allegiance (pledge) creates a classification that is potentially cognizable under the equal rights amendment of the Massachusetts Constitution, art. 1 of the Declaration of Rights, as amended by art. 106 of the Amendments, although not on the record in the present case.
Our opinion rightly notes that recitation of the pledge, in whole or in part, is entirely voluntary. But the logical implication of the phrase “under God” is not diminished simply because children need not say those words aloud. A reference to a supreme being, by its very nature, distinguishes between those who believe such a being exists and those whose beliefs are otherwise. This distinction creates a classification, one that is based on religion. Theists are acknowledged in the text of the pledge, whereas nontheists like the plaintiffs are excluded from that text and are, therefore, implicitly differentiated.
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, 440 Mass. 309, 312 (2003). Absent such a showing, the plaintiffs’ claim must fail. See Matter of Corliss, 424 Mass. 1005, 1006 (1997), citing Murphy v. Commissioner of the Dep’t of Indus. Accs., 415 Mass. 218, 226 (1993), S.C., 418 Mass. 165 (1994) (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 *85 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.