Mark Law Firm Blog

NJ finds no religious discrimination in pledge at school

Posted by Jamison Mark on Jun 10, 2015 10:47:15 AM
New Jersey Attorneys 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. --US Constitution, Amendment I

More than two centuries after its adoption, the First Amendment remains one of the bedrock tenants of American values; most state constitutions (including New Jersey’s) have equivalent free exercise provisions. But like all of the Constitution and Bill of Rights, modern courts determine how it should be interpreted and applied to current disputes.


A recent New Jersey case has reinforced the prevailing interpretation that government entities, including schools, can pass laws and policies that permit or institute expressions of religion while still complying with the letter and spirit of the First Amendment.

The American Humanist Association (AHA) brought suit against Matawan-Aberdeen Regional School in Monmouth County in April 2014 on behalf of an atheist family. The suit claimed that the school’s practice of leading students in recitation of the Pledge of Allegiance, which includes the phrase “one nation, under God,” violated their “equal protection” rights under the New Jersey constitution. (Matawan-Aberdeen’s practice is in place as a result of a NJ statute which requires students salute the flag and repeat the Pledge of Allegiance.)

Essentially, plaintiffs claimed that atheist students have an equal right under the First Amendment to be as free of religion as others do to exercise religion, and that the school and the State were improperly infringing on that right by imposing the rules requiring recitement of the Pledge. They claimed that the phrase “under God” defines patriotism only in terms of belief in God and excludes non-believers from full participation in the community.

The Pledge of Allegiance, written in 1892 and adopted by Congress in 1942, didn’t contain the words “under God” until 1954. The phrase was added by the anti-communist McCarthy-era Congress to emphasize the differences between the values of the United States and the “godless” Soviet Union (and re-affirmed in 2002). Defendants argued that the words “under God” are not inherently religious so much as a reminder that a power greater than the government gives the people their inalienable rights and human dignity.[1]

In order to be allowed by the Courts, laws that involve religion must not result in an "excessive government entanglement" with religious affairs, must not advance nor inhibit religious practice, and must have a secular legislative purpose.[2]

Similar cases have been decided in a number of states in favor of policies that retain the “under God” language of the Pledge. The recitation must be voluntary – the U.S. Supreme Court has ruled that a student cannot be forced to recite the Pledge.[3] In a recent Massachusetts case similar to the Matawan-Aberdeen case, the strongest factor in the permissibility of the policy was that no students were coerced, punished, questioned, bullied, ostracized, or treated any differently if they chose not to recite the pledge.[4]

The New Jersey case re-affirms that the First Amendment doesn’t prohibit all secular expressions of religion, so long as they don’t unlawfully infringe on others’ rights to exercise their own religion, or force others to participate in religious expression. If these criteria are met, it seems that courts will likely continue to find that they do not violate any else’s right to be free of religion and uphold their constitutionality.


If you think you or your child has been a discrimination victim or subjected to unlawful treatment in school, the experienced New Jersey education lawyers at The Mark Law Firm can help! We have offices in River Dell, Newark, and Basking Ridge; discrimination claims are evaluated by our team of experienced attorneys for potential New Jersey religious discrimination lawsuits. Contact us today by clicking the link below.

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[2] Lemon v. Kurtzman, 403 U.S. 602 (1971)

[3] West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)


Topics: Discrimination & Harassment, Education Law