The Pledge_ A History of the Pledge of Allegiance - Jeffrey Owen Jones [68]
Despite these legal setbacks in mandatory participation in reciting the Pledge, the political position of those pursuing the demand that everyone say the Pledge remained the dominant popular position.
And in this period when it came to laws dealing with the Pledge, politicians knew and understood this power. Then—and now—once politicians get into positions of legislative power, they can publicly proclaim a popular position on the Pledge and enact laws that reflect that popular position. They can do this with impunity even though they have full knowledge that if the law was ever strictly enforced and then challenged in a court, it would very likely not stand up to legal scrutiny.
That, in a nutshell, is legislative politics.
And as nearly every politician has learned in the last hundred years: woe to those who oppose the popularity of the Pledge of Allegiance—and the laws that promote and protect it.
This unquestionable dictum seemed to evade Michael Dukakis, the Democratic candidate for president in the 1988 election. In 1977, while governor of Massachusetts, Dukakis made a decision about the use of the Pledge in his state that reverberated with such furious intensity during the 1988 campaign that many political observers claim it cost him the election. It all started when the Massachusetts state legislature passed a statute in 1977 replacing a 1935 state law about compulsory recitation of the Pledge in public schools. The new law strengthened and expanded the requirements of the earlier law. The 1935 law required teachers, under penalty of fine and possible dismissal from their jobs, to lead their students in the Pledge at least once a week. The new law made it mandatory for teachers to have their students recite the Pledge daily.
The political popularity of enacting this new law apparently blinded the legislators of 1977 to the events that followed the passage of their own 1935 law.
It was this very 1935 Massachusetts law that prompted the expulsion of Jehovah’s Witness Carelton Nicholls, Jr., from his school in Lynn, Massachusetts, which in turn sparked the inflammatory October 1935 radio address by Witness leader (and lawyer) “Judge” Rutherford, which then began the coordinated boycott of the Pledge by Witnesses across the country, leading ultimately to the U.S. Supreme Court decision to declare compulsory Pledge compliance unconstitutional in the 1943 Barnette decision.
However, despite all the legal wrestling over the Nicholls case in Massachusetts, that particular case never made it to the U.S. Supreme Court to test the 1935 Massachusetts law specifically. (The Witnesses decided not to use the case as the one they focused on.) Since there was no further appeal on the Nicholls case, the 1937 ruling of the Massachusetts Supreme Court remained the law in the Bay State, even though it was not, technically, the law of the land. According to the Massachusetts Supreme Court, the Witnesses were wrong about the Pledge:
There is nothing in the salute or the Pledge of allegiance which constitutes an act of idolatry, or which approaches any religious observance. It does not in any reasonable sense hurt, molest, or restrain a human being in respect to “worshipping God.”
Therefore, when the Massachusetts legislature wanted to expand the law in 1977 there had been no further court test on the state’s 1935 law since the 1943 Supreme Court decision in the Barnette case.
But there was a little wrinkle in the Massachusetts law that would become a political bombshell for future presidential candidate Dukakis. The Massachusetts law made the Pledge compulsory for teachers. The Barnette decision called the compulsory nature unconstitutional for students and said nothing about teachers.
Assuming that a law directed toward teachers was immune to the Supreme Court decision directed to students, the Massachusetts legislature sent the bill on to Dukakis