Tuesday, June 22, 2010

It's Incontrovertible, "So Help Me God" Stays Put

The Newdow v. Roberts case is still hovering about. In a recent ruling dated May 07, 2010, Janice Rogers Brown, a federal judge on the United States Court of Appeals for the District of Columbia Circuit, effectively declared that when the Supreme Court Chief Justice of the United States administers the presidential oath, it's incontrovertible, "so help me God" stays put (at least, for now).

Unfortunately, when Judge Brown directed her attention towards Michael Newdow et al, and expressed her view dealing with the historical context surrounding the questioned practice of adding a religious codicil to the presidential oath, she appears to be woefully uninformed:

Plaintiffs do not claim President Obama's recitation of "So help me God" at the conclusion of his oath injured them. See Br. [*18] for Appellants at 38. The President cannot be denied the prerogative of making such a religious reference, they concede, because doing so would abrogate his First Amendment rights. See Tr. of Oral Argument at 10-11. For sure, if it were otherwise, George Washington could not have begun the tradition by appending "So help me God" to his own oath; ... .

The obvious problem with this comment – for those who have examined Newdow's original brief or have otherwise done their homework – is there is no known firsthand account that descibes George Washington as having deviated from the presidential oath as explicitly defined by the United States Constitution. Consequently, the claim that George Washington started a tradition of adding "so help me God" is a bridge much too far, since it apparently took another 165 years for this so-called "tradition" to receive any public notice. (See here for an early prominent example dating back to 1961.)

In a concurring opinion, Judge Brett Kavanaugh compared the addition of "so help me God" to the presidential oath to the legislative prayer upheld in Marsh:

Like the legislative prayer in Marsh, the words “so help me God” in the Presidential oath are not proselytizing or otherwise exploitative. Moreover, like the practice of legislative prayer, use of “so help me God” in oaths for government officials is deeply rooted in the Nation’s history and tradition. By many accounts, George Washington said “so help me God” when he took the first Presidential oath in New York on April 30, 1789. The First Congress – the same Congress that drafted and approved the First Amendment – mandated “so help me God” in the oaths of office for federal judges.

Under Marsh and other Supreme Court precedents, the Establishment Clause permits “so help me God” in the official Presidential oath.

According to the above mentioned historical-like sound bites, Judge Kavanaugh thinks he has completely validated the inclusion of "so help me God" during the administration of the presidential oath by citing practices "deeply rooted in the Nation's history and tradition." First off, the necessary obligations required for the presidential oath are spelled out by the United States Constitution, and unlike legislative prayer, this obligation has never been subject to legislative action or First Amendment concern. Secondly, Kavanaugh relies upon several legendary law journal shibboleths in building his case: 1) of the "many accounts" that describe George Washington's first inauguration none has ever claimed to have heard Washington recite the presidential oath but for what was actually prescribed by the Constitution; 2) the legislated inclusion of "so help me God" to the standard federal oath did not occur until the outbreak of the Civil War; 3) even if we assume that Washington could have added a non-constitutional "so help me God" to his oath of office, there still is a gap of ninety-two years before a subsequent president is known to have repeated this so-called "tradition;" and, finally, 4) even if one includes New York State Chancellor Robert Livingston, there is no known record of any judicial officer who prompted a president to conclude his oath with "so help me God" any earlier than FDR's 1933 inauguration.

It is true, but somewhat misleading, to say: The First Congress – the same Congress that drafted and approved the First Amendment – mandated “so help me God” in the oaths of office for federal judges. All Department of Justice employees swear to the standard federal oath. The oath for appointed federal judges does not replace this standard federal oath, which, as proposed by the First Federal Congress and signed into law on June 1, 1789 by President Washington, did not include the phrase "so help me God." In the special case of the additional judicial oath, it is not, as implied by Judge Kavanaugh, strictly prescribed as a singular mandate, because every judicial candidate has always been able to omit saying "so help me God" by affirming the oath.

Now, with all this said and just as one might expect, on June 9th, little more than a month after Judges Brown and Kavanaugh had their say, the undaunted Michael Newdow challenged their ruling, and filed a petition for an en banc rehearing of the case, Newdow v. Roberts. So, if Newdow's petition is granted, the cadre of D. C. district judges will get another crack at whether or not the correct wording of the presidential oath includes "so help me God." Stay tuned.


Brian Tubbs said...

Set aside George Washington. Set aside when the practice/tradition of adding "so help me God" started. And let's agree that Presidents should not be compelled to say "so help me God."

Okay? Can we set aside the first two points above and agree on the third. With me?? If so...

Do you agree with this:

"Plaintiffs do not claim President Obama's recitation of "So help me God" at the conclusion of his oath injured them. See Br. [*18] for Appellants at 38. The President cannot be denied the prerogative of making such a religious reference, they concede, because doing so would abrogate his First Amendment rights. See Tr. of Oral Argument at 10-11."

In other words, do you agree that a President should have the right to voluntarily add "so help me God" at the end of his/her oath?

Ray Soller said...

Brian, I agree. The president can add whatever is suitable as he already does in his inaugural address, but that's not what Newdow v. Roberts is about. Roberts is the defendant, and the real issue is whether he possesses any constitutional authority to turn the presidential oath into a religious test that clearly favors one type of religious belief over other alternatives.

Brian Tubbs said...

I haven't read the particulars of the case, but let me then ask a follow-up question. You agree that the President-Elect should have the right to add "so help me God" (or "so help me Momma" or whatever) as an appendage to the oath. Do you ALSO agree that the President-Elect can request that the Chief Justice (or whoever administers the oath) add "so help me God" as a prompt? In other words, do you have an objection to the Chief Justice voicing "so help me God" at the end of the oath as a prompt, if it's with the request or advance consent of the President-Elect?

Tom Van Dyke said...

do you have an objection to the Chief Justice voicing "so help me God" at the end of the oath as a prompt, if it's with the request or advance consent of the President-Elect?

Well, in fairness, Brian, I think that's precisely Ray's and Newdow's strict legal argument.

The Chief Justice should administer the oath according to the exact formulation prescribed by the Constitution, which doesn't include "So help me God."

If the President-Elect wishes to add "So help me God" on his own initiative, as a voluntary affirmation and exercise of his First Amendment right to "the free exercise thereof [religion]," that's just fine.

The argument is that the Chief Justice should not "prompt" him.

I respect the argument. "So help me Allah" or "so help me Satan" must be equally acceptable as a prompt for any lawfully elected official, whatever his choice. Should the Chief Justice therefore prompt Allah or Satan according to the free exercise thereof of the duly elected President-Elect's preference?

"So help me nothing, since life's a bitch and then you die."

Now, I don't agree with any of this because I don't think every pound of flesh and letter of the law should be litigated, but that's a philosophical argument per the wisdom of Shakespeare.

Law and legalism won't get us through this mortal coil without each one of us justly executed or at least in jail.

But I did want to pick up for Ray here. His logic is inarguable. I would just say that no nation or society can survive without some grease on the wheels. Men are not ants or bees or termites, hive creatures. You gotta let some stuff slide, and religion and God fit that bill just fine. Grease on the wheels.

Ray Soller said...

I doubt my opinion matters because the court determines the grounds for what may or may not merit a definitive decision, but since I see the inclusion of SHMG as being a religious test, then no federal officer, who has sworn to uphold the Constitution, should administer a federal oath with SHMG or any other religious qualification. I, consequently, don't see how even a president should request an exception to that sworn obligation. On the other hand, Michelle Obama wouldn't be under that obligation, so one could suppose she would be able to administer the president's oath with a religious tagline just as readily as she held the Lincoln Bible during the oath.

I can somewhat understand within an historical framework why an oath with a religious codicil was thought necessary for appointees to the judiciary, because these individuals received lifetime appointments. It was therefore thought that the ultimate accountability for these oaths, other than by impeachment, could only be meted out by God. Otherwise, it was the voter who reckoned whether an elected federal official had acted responsibility while performing the duties of that office.

If you'll recall Washington's second inaugural address, this is the way he saw the matter where it concerned his conduct as president: Previous to the execution of any official act of the President the Constitution requires an oath of office. This oath I am now about to take, and in your presence: That if it shall be found during my administration of the Government I have in any instance violated willingly or knowingly the injunctions thereof, I may (besides incurring constitutional punishment) be subject to the upbraidings of all who are now witnesses of the present solemn ceremony.

Brian Tubbs said...

Tom, thanks for your comments. I'm not trying to give Ray a hard time. On the contrary, rather than just post disagreements with him, I'm genuinely asking him questions to establish where we agree and where we differ.

That said, Tom, I see great wisdom on your "grease on the wheels" statement. Some flexibility must be allowed. And this is certainly the case, in my opinion, given the fact that the American people overwhelmingly believe in God. Between 85 and 95 percent, depending on the poll you look at.

Brian Tubbs said...

Ray, if the Chief Justice or oath administrator prompts the person with "so help me God," I agree that you're in Gray Area territory there. You're right on the border of a technical violation of the Constitution's prohibition against religious tests.

And if the oath administrator requires or insists on the person saying the words "so help me God," then the line has DEFINITELY been crossed. We are in 100% agreement on that.

But I believe, in the case of Obama's inauguration, he communicated to Chief Justice Roberts that "so help me God" was fine by him. So it was with Obama's consent (arguably even request) that Roberts prompted him with "so help me God." Thus, I don't see a violation.

Ray Soller said...

Brian, I doubt you're trying to give me a hard time, but as I recall the two of us have already gone down this exact same road once before. My questions to you are: 1) when a federal administrator prompts (voluntarily or not) a candidate for public office to repeat the words "so help me God" is that a religious test?; 2) in the case of a federal judge should the awareness of our nation's population per centage of god-believing folk outweigh the importance of an accurate understanding of the manner in which the presidential oath of office has been administered during the first 140 years of our nation's history?

Brian Tubbs said...

Ray, yes, we have gone down this road. But, as you continue to post about this issue on the blog, I will probably continue to post responses. If for no other reasons, for the fact that I want the readers of your posts to see other perspectives. There's nothing personal in that, as I welcome such responses to my posts.

Answering your questions...

1) If it's a compulsory prompt, then...YES. If it's a voluntary prompt (i.e., prompted with the consent of or at the request of the incoming office holder), then...NO. There is no religious test. I realize we differ on that second point, but there it is.

2) Your second question is loaded. But rather than debate on the particulars, I'll just refer back to my first answer. When it comes to the "Gray Area" of a voluntary/consensual prompt, I think public opinion allows for some (in Tom's words) greasing of the wheels. But only some.