By Mathew Goldstein
The Free Speech Center at Middle Tennessee State University (MTSU) has created “The First Amendment Encyclopedia” with hundreds of articles, one of which, “So Help Me God”, was written by the dean of the Honors College at MTSU, and professor of political science, John Vile. The article begins by citing Michael Newdow’s 2008 lawsuit against Chief Justice Roberts in anticipation of his adding those four words to the presidential oath of office.
Before discussing the contents of that article we need to discuss the lawsuit. The “causes of action” in the complaint filed with court are worth reading, see https://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2008cv02248/134560/1. The first thing to note is that the complaint cites six “causes of action” counts that cover two different components of the presidential inaugurations. The first count targets the unauthorized alteration of the constitutional oath of office by the Chief Justice. The second count targets the government sponsored invocations to god and benedictions in the name of god by invited clergy. The lawsuit names two sets of defendants with the Chief Justice being the defendant for the “so help me God” component of the lawsuit while clergy are the defendants for the invocation and benedictions component of the lawsuit. Both counts argue a violation of the Establishment Clause. Counts three through five group together both sets of defendants and argue that they are also violating the Free Exercise Clause, the RFRA, and the fifth amendment Due Process Clause.
Paragraphs 106-108 of the first count of the complaint reads: Since 1933, “so help me God” has been used at every public inaugural ceremony, with that unauthorized alteration interposed each time by the Chief Justice of the United States. If President-elect Obama (as a black man fully aware of the vile effects that stem from a majority’s disregard of a minority’s rights, and as a Democrat fully aware of the efficacy his Republican predecessor’s “so help me God” oath additions) feels that the verbiage formulated by the Founders is so inadequate that he needs to interlard his oath with a purely religious phrase deemed unnecessary by the first twenty presidents, Plaintiffs have no objection at this time. The President, like all other individuals, has Free Exercise rights, which might permit such an alteration. No such Free Exercise rights, however, come into play on the part of the individual administering the oath to the President.
Paragraph 123 of the first count of the complaint reads: An oath-administrator’s addition of “so help me God” to the constitutionally prescribed presidential oath of office violates every Establishment Clause test enunciated by the Supreme Court, including the neutrality test, the purpose prong of the Lemon the effects prong of the Lemon imprimatur test.
The MTSU article says: “There is, however, contemporary evidence that George Washington engaged in a symbolic equivalent when he kissed the Bible after taking his oath, and that this practice was contemporaneously also reported for the inaugurations of Andrew Jackson, Abraham Lincoln, Ulysses S. Grant and, at times, through the presidency of Harry S Truman (Jonassen 2012, 898).“ There is an explanation for the Bible kissing that is relevant yet omitted from the article. At the time of the first inauguration the only law covering government inaugurations was state law. The applicable New York State law at the time called for a Bible to be kissed. So if we are looking for the first federal presidential inauguration to establish a presidential inaugural standard in accord with federal law the proper place to look is the second inauguration. There was no bible at the second inauguration (regardless of assertions otherwise from propagandists such as Mr. Barton).
The MTSU article then says: “In a comprehensive study of the subject, law professor Frederick B. Jonassen, of Barry University, has concluded that the practice is probably justified not only under the historical usage principle articulated in the case of Marsh v. Chambers as well as the free exercise rights of individuals choosing to add these words to the oath.”
The historical usage principle functions as little more than a bad excuse for selectively upholding some constitutional violations, we would better off with no such unprincipled “principle”. In any case, the original context for the application of that principle was an uninterrupted history of the practice in dispute starting from the initial Congress. That context does not apply to the alteration of the oath of office by the Chief Justice.
And the “as well as the free exercise rights” comment is even more misdirected. The plaintiffs clearly stated that the target of their lawsuit was the alteration of the oath by the oath administrator. They acknowledged that the same alteration to the oath by the oath taker could be legally justified on free exercise grounds. The actions of the oath taker is a distinct, separate, issue from the actions of the oath administrator, and the plaintiffs stated that they were not litigating the former. There is no viable free exercise concern at play for the oath administrators.
The MTSU article continues: “He [law professor Frederick B. Jonassen] also argues that the practice passes the three prongs of the Lemon Test and other contemporary tests that the U.S. Supreme Court has used in contemporary cases involving the establishment clause of the First Amendment.” How can it be argued that altering the constitutional oath of office to render it theistic is necessary for achieving a secular government purpose? Is the constitution itself unconstitutional because the presidential oath is secular? The authors of the constitution knowingly and deliberately specified a single sentence, non-theistic oath. How can it be deemed necessary for the oath administrator to prompt the oath taker to append a phrase that the oath taker could append without prompting? And if the oath taker wants the modification then where are the written requests from the president to the Chief Justice? What kind of legal procedure allows for oath administrators to accommodate requests made verbally with no recorded evidence that such requests were actually made on the initiatives of the oath takers? And on this flimsy basis how can professor Jonassen claim, as if it is a relevant jurisprudential fact, that such requests were so made, and made not merely for partisan electoral self-defense or advantage but for personal free exercise?
This MTSU article is misrepresenting the relevance of the first inauguration and the context behind the plaintiffs lawsuit. The article also discusses the “so help me god” phrase for Congressional witnesses without addressing how that impacts atheists. Imposing theistic oaths on people invited to give testimony to Congressional committees should not happen and insofar it does happen should be challenged and declared unconstitutional. The article is about government sponsored theism yet it says nothing at all about atheists. It is a biased “disregard” atheists article.
My perspective is that while an inauguration ceremony event is optional, the inaugural swearing-in component is legally obligatory. Therefore, unlike the rest of the inauguration, where there can be some ambiguity regarding its non-government versus government status, the oath recitation is unambiguously always a government event covered by the Establishment Clause. The president elect can choose how the event is conducted. There can be an oath administrator or not, the oath can be recited in private or in public, etc. There are only a few common sense requirements.
We need good evidence that the oath was recited so the oath recitation should be recorded. When there is an oath administrator then the oath administered should be the unaltered legal oath unless the oath taker provided a proper free exercise justification for the oath being altered in writing in advance. It is unnecessary for an oath administer to append a religious codicil, so a request to do that could be, and probably should be, refused. Following the completion of the legal oath the president has an individual free exercise right to add, on his or her own initiative, a religious codicil of his or her choice. That there is an individual free exercise right in an oath of office recitation context is clearcut and in my view should not be controversial or disputed. To deny anyone a government office because of an oath of office religious content restriction would be wrong and unfair, oaths of office are not supposed to be religious belief tests.
The primary effect of the oath administrators always appending the same monotheistic codicil while administering the oath is to mislead the public into concluding the oath is theistic. The effect implies the corresponding intent to conceal the awkward fact that the constitutional oath of office is non-theistic. Claims that the motive for the oath administrator to alter the oath is free exercise are not credible, that is a cover-up excuse. We should be publicly challenging both the president elect and the Chief Justice to administer the oath properly, without the monotheistic codicil, and every time it is not we should publicly criticize the practice. A president instructing the Chief Justice in writing to append the monotheistic codicil is a small improvement, but we can, and should, be doing better. Acknowledgements in some of the news media, prompted by the controversy, that the oath is non-theistic are a small win for non-establishment. Yet it is the oath takers, without the unnecessary prompting of the oath administrators, who should be appending a religious codicil of their choice on their own initiatives to government oaths.