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.