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Paul Millus Interviewed by The Hot Zone

Apr 23, 2014Litigation & Dispute Resolution

Media Source: The Hot Zone


A family is suing the Matawan-Aberdeen Regional School District and its superintendent over the phrase “under God” in the Pledge of Allegiance.

A lawsuit that was filed on behalf of the family in Superior Court in Monmouth County, and the American Humanist Association “claims that the practice of acknowledging God in the pledge of allegiance discriminates against atheists, in violation of New Jersey’s constitution.” The family wishes to remain anonymous.

The school district’s attorney states that the district is just following a state law that requires students to recite the Pledge of Allegiance daily.

“All we are doing is abiding by requirements of state law, we and approximately 590 other school districts in the state,” said school district lawyer, David Rubin.

“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 this matter,” Rubin said.

The American Humanist Association is a nonprofit organization that works to protect the rights of humanists, atheists, and other nonreligious Americans.

“While atheism addresses only the issue of the existence of a deity, humanists take a broader view that, in addition to rejection of the existence of deities, includes ‘values that are grounded in the philosophy of the Enlightenment, informed by scientific knowledge, and driven by a desire to meet the needs of people in the here and now,’ according to the lawsuit.

The American Humanist Association has over 24,800 members and 180 chapters and affiliates across the country, including seven in New Jersey, according to the suit.

“Among these members and supporters are numerous parents of children who are, or will be, attending New Jersey public schools, including some who attend or will be attending the public schools of the Matawan-Aberdeen Regional School District,” it said.

Rubin stated that even though the law requires recitation of the Pledge of Allegiance in schools, students within the Matawan-Aberdeen Regional School District aren’t required to recite it if they object. Years ago, federal courts had determined that students can’t be forced to do so.

The suit said that the daily affirmation of God in schools reinforces a prejudice against humanists and atheists. It makes a claim that studies show atheists are “the most disliked and distrusted minority group in the country,” ranking below Muslims, recent immigrants, and gays.

“While plaintiffs recognize that (the child) has the right to refuse participation in the flag-salute exercise and pledge recitation, the child does not wish to be excluded from it, and in fact wants to be able to participate in an exercise that does not portray other religious groups as first-class citizens and his own as second-class,” the suit states.

I had a few questions about this story, and I wanted to get some input from an expert about it, so I spoke with Paul Millus. He is “of Counsel to Meyer, Suozzi, English & Klein, P.C. and practices in the Litigation and Employment Law Departments located in both Meyer Suozzi’s Garden City, Long Island, and New York City Office.”

MC: Will the family have a lot of success with this lawsuit considering that “Under God” has been said in the Pledge of Allegiance for years?

PM: Let me put it this way. I don’t know if a lot of success is necessarily in the cards. What I do believe is that they have plausible claim considering that the Supreme Court has yet to definitively rule on the phrase “Under God” as it stands in the “Pledge of Allegiance.” So therefore what the humanists are doing in this particular situation is taking the New Jersey statute, which is unique in so far as what it says in pertinent part that you can’t segregate individuals in public schools based on religion.

So the question before the courts will be does the requiring of the pledge to be said, whether or not the individuals are required to say “Under God”? Does the silence that one may exercise in terms of their rights…does that in fact constitute segregation because essentially they’re being treated differently or being forced to be treated differently?

So there’s the key. In the New Jersey Courts where this is going to be decided it’s an interesting issue because the humanists went out and carefully selected this state and that language… I believe that if it were simply an attack under federal law to say that whether this stuff violated equal protection rights they probably would not be successful but I can’t say that for sure only because the Supreme Court has yet to rule on that precise issue in so far as “Under God” in the Pledge of Allegiance.

MC: Have there been a lot of instances in other states where parents have tried to sue over this?

PM: What happens is you have situations where others have tried to sue and they weren’t parents so they didn’t have standing. There’s a Massachusetts Supreme Court case that’s going to be heard by the High Court in Massachusetts that’s of similar ilk to this one. There have been other lawsuits in the past and in the end, for the most part, it was found to be not coercive if the individual was not required to say it. So, those courts have generally spoken. But the high court has not. And that’s the hope of the humanists.

These types of lawsuits are all about raising awareness to their particular cause and testing the waters…pushing the envelope as far as they can. And that’s what they’re doing in this situation. They’re taking this precise Jersey statute…they’re gonna see where they can get in it saying that they are being segregated by virtue of the fact that “I choose to remain silent” and under the circumstances then expose themselves to ridicule.

So, yes, it has been heard in other courts. It has not been successful, generally, because people don’t view it as coercion. Remember this is all about the establishment clause…establishing religion. And does using the phrase “Under God” in the Pledge establish religion? Many courts have said it does not.

MC: How can you sue a particular school district? Shouldn’t you be going after the whole state?

PM: That’s the key. You can’t sue the state; you can’t sue the legislature. The only parties you can sue are the ones that are really down the chain or enforcing the laws set by the state. This was obviously well thought out. At the end of the day what you have is the school district is the one who is enforcing it. They’re the first and primary defendant. They look to the state but in the end the court’s going to make a decision that will be essentially looking at the whole law which was passed by the legislature. Suing the state itself is not the best route for the plaintiff; suing the individuals who are essentially causing them “harm” is the smart move legally and that’s why they sue the school district directly.

MC: On the dollar bill we have “In God We Trust.” How far can you take this?

PM: There’s a big difference there because “In God We Trust” isn’t a statement being made by anyone. The argument that because I have to use the coin of the realm in order to purchase things…that my rights are being inhibited simply has never flown. People have challenged “In God We Trust;” it’s gone nowhere. Legally speaking, there’s a big difference between a student remaining silent in so far as the pledge is concerned, and thus setting them apart from other students, and someone reaching into their pocket to use money to make a purchase. No one could ever say that was in fact inhibiting them in any way, and that has been determined by the courts uniformly not to be the establishment of religion simply because it’s on a dollar bill. When I was on Fox yesterday Eric Bolling tried to make the same point but they’re vastly different.