Posted by Eugene Volokh:
"So Help Me God" in Judicial Oath:
http://volokh.com/archives/archive_2009_02_01-2009_02_07.shtml#1233373022
Reader Dominic Markwordt writes:
I happened to be doing some research for my law review comment and
came across the oath all U.S. judges/justices are required to take.
Each justice or judge of the United States shall take the following
oath or affirmation before performing the duties of his office: "I,
_______ _______, do solemnly swear (or affirm) that I will
administer justice without respect to persons, and do equal right
to the poor and to the rich, and that I will faithfully and
impartially discharge and perform all the duties incumbent upon me
as _______ under the Constitution and laws of the United States. So
help me God." [1]28 U.S.C.A. ยง 453....
Is it constitutional? It would seem suspect under the Court's
current establishment clause jurisprudence given that the oath
required for the president in the Constitution does not include the
phrase "So help me God." ...
Well, the judicial oath dates back to [2]1789, and the same First
Congress that proposed the First Amendment. Simply including this
religious reference would therefore not be an unconstitutional
endorsement of religion, under the [3]Marsh v. Chambers Give Me That
Old-Time Religious Speech principle.
The Supreme Court has also read the Establishment Clause as
prohibiting the coercion of religious behavior. This prohibition is
much less controversial than is the prohibition of endorsement of
religion. (Lee v. Weisman, which held high school graduation prayer to
be unconstitutional coercion, was controversial, but because the
dissenters didn't see the prayer as coercive -- they agreed, as I read
the opinion, that genuine coercion of religious behavior was indeed
unconstitutional.)
On the other hand, in this instance the prohibition of coercion is so
uncontroversial that the statute will almost certainly be read as not
requiring the "so help me God." Recall that Article VI of the
Constitution says (emphasis added),
The Senators and Representatives before mentioned, and the Members
of the several State Legislatures, and all executive and judicial
Officers, both of the United States and of the several States,
shall be bound by Oath or Affirmation, to support this
Constitution; but no religious Test shall ever be required as a
Qualification to any Office or public Trust under the United
States.
The statute echoes this by allowing an "affirmation," as did the 1789
statute. But the whole point of an affirmation is that it does not
involve calling on God; an affirmation would thus necessarily omit the
"so help me God." (As I understand it, the affirmation option was
placed in the Constitution because some Christian denominations --
such as Quakers -- oppose swearing to God.) And this is further
confirmed by the No Religious Test Clause; requiring acknowledgment of
God would itself be a religious test.
So never fear coercion here: No judge has to say "so help me God"; he
is free to affirm and thus avoid mention of God or even of swearing
(with its potentially religious connotation) altogether. But if you're
worried about endorsement, Marsh says such endorsement is fine.
References
1.
http://www.law.cornell.edu/uscode/uscode28/usc_sec_28_00000453----000-.html
2.
http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=199
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=463&invol=783
_______________________________________________
Volokh mailing list
Volokh@lists.powerblogs.com
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
