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So Help Me God

by Professor Will Huhn on January 14, 2009

in Abraham Lincoln,Constitutional Law,Wilson Huhn

     Michael Newdow has filed suit to prohibit the Chief Justice John Roberts from stating and President-Elect Barack Obama from repeating the phrase "so help me God" following the oath of office next week at the Inauguration.  Three provisions of the Constitution bear upon this question: the Clause prescribing the presidential oath of office, the Establishment Clause, and the Clause prohibiting any religious test for public office.

     Article II, Section 1, Clause 8 of the Constitution prescribes the oath of office that the President must say in order to take office.  It says:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–''I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.''

     Article VI, Clause 3 of the Constitution ends with these words – the last substantive provision of the original Constitution:

No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

     The first words of the First Amendment state:

Congress shall make no law respecting an establishment of religion.

     It can be argued that adding the words "so help me God" to the oath of office that the President is legally required to take before assuming office is unconstitutional for three reasons.  First, because the Constitution specifically precribes the content of the oath of office, Presidents, and Chief Justices, and even Congress itself lack the authority to alter it.  Second, for the Chief Justice to prompt the President-Elect to say these words the Chief Justice is making belief in God a requirement for public office – an unlawful religious test.  Finally, it may be argued that for the Chief Justice to administer and the President to recite this phrase constitutes "an establishment of religion" – an endorsement of religion – a violation of the principle of separation of church and state.

     There are also some very persuasive arguments against Newdow's position.  The first response to Newdow's objection is contained in the text of the "oath of office" clause.  Note that the Constitution allows the President to either "swear" or "affirm" that he or she will faithfully execute the laws and will preserve, protect, and defend the Constitution.  One meaning of the term "swear" connotes taking an oath before God, in contrast to an affirmation which is an equally solemn promise but one that is made without religous intent.  The choice to swear or affirm lies with the President, not the Chief Justice, but nevertheless it is perfectly constitutional for Obama to choose to swear his allegiance to the Constitution rather than to simply affirm it.

     The second and more powerful legal argument in favor of allowing the President to say "so help me God" lies in the dual nature of every occupant of public office.  This duality may be illustrated by reference to the history of this phrase.

     The first President to add the words "so help me God" to the oath of office was Abraham Lincoln on the occasion of his second inaugural in 1865.  In addition, as you can see from my previous posting, Lincoln's Second Inaugural Address is suffused with biblical and religious references.  Why isn't Lincoln's entire speech considered to be a violation of the Establishment Clause?

     The answer is that Abraham Lincoln was both President and a private individual – an officeholder and a politician – a government employee and a citizen.  As President he was not permitted to take any action affecting other people's legal rights and responsibilities with respect to religion – as President he had to be strictly neutral with respect to religion.  But as a private citizen he was free to express his belief in God – to go to church, to participate in religious exercises, and to persuade other people to his beliefs.  He did not give up these rights by ascending to public office.  Lincoln's Second Inaugural Address properly incorporates religious imagery meant to convey the fundamental political and moral values that Lincoln adhered to.  Like Lincoln, in my opinion Barack Obama may, at his option, request the Chief Justice to add the words "so help me God" to the oath of office as a further expression of his personal resolve to faithfully execute the laws and to preserve, protect, and defend the Constitution of the United States.