Obama oath-of-office lawsuit

Per Religion Clause, Michael Newdow’s lawsuit “asks the court to enjoin the Chief Justice– who will administer the oath of office– from adding ‘so help me God’ to the constitutionally prescribed presidential oath (Art. II, Sec. 1). It also asks the court to declare unconstitutional the use of clergy to deliver an invocation and benediction.” It does not seek to forbid Obama from saying the words if he wishes, however. Newdow is the guy who unsuccessfully sued against the “Under God” in the Pledge of Allegiance, and he filed similar lawsuits over the 2001 and 2005 inaugurations, so there are elements of both “pounding his head against a wall” and “old news” here, but Eugene Volokh and Richard Esenberg have some observations worth reading.

About Walter Olson

Fellow at a think tank in the Northeast specializing in law. Websites include overlawyered.com. Former columnist for Reason and Times Online (U.K.), contributor to National Review, etc.
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36 Responses to Obama oath-of-office lawsuit

  1. I’d like to see the ‘so help me God’ removed, although not necessarily banned (Being a mostly ceremonial occasion, tailored to a specific person, some ceremony is tolerable).

    I have to disagree about the clergy though. It would seem to me to be a slap in the face of the first amendment to prevent someone from delivering the invocation based solely on their profession or hobby.

  2. Caledonian says:

    I concur about the clergy, but the phrase should absolutely be removed.

    People should be able to say pretty much whatever they like in their roles as private citizens, but the oath is a different matter. People in the process of swearing it should not be able to leave any of it out or add anything to it merely on their whims.

    As a consequence, it is very important that the oath be properly worded. The phrase is both unnecessary and contrary to fundamental principles of our system of governance. It should not appear in the oath and we should not permit anyone to add it to the oath in the process of swearing.

  3. Polichinello says:

    The “so help me God” phrase is a sign of oath-takers sincerity. If the man taking the oath wants to append it, it should be his. As the phrase has become something of word in itself (sort of like “God willing” or “God only knows”), picking a fight on this issue is just silly and will only objectively ADD religious meaning to the ceremony instead of removing it.

  4. An excellent point about additions and omissions. Perhaps it should be sterile, short, and to the point. Let them give a flowery speech before or after, but leave the oath itself as a binding contract rather than a sound byte.

  5. It is interesting that the people who want it to remain seem to be the ones claiming it doesn’t really mean anything. If it isn’t important, then get rid of it.

    I would think neither side would want it there. The atheists because it doesn’t belong, and the theists because it demeans the term and weakens it having people say it under duress.

    It also tends to be used by politicians of the bible thumping variety as evidence that we are a Christian nation and should legislate as such. In fact, the main argument for having God in the oath is that God was in a bunch of previous oaths.

  6. Caledonian says:

    An interesting point, Steel Phoenix. I agree with

    If it isn’t important, then get rid of it.

    — if it’s meaningless it shouldn’t be in the oath, and if it’s meaningful it can’t be permitted in the oath.

    I disagree with you about the theists, though. Most people who claim to be religious are more concerned with in-group/out-group distinctions and their ability to make people conform to their demands than niggling details of conscience and conviction. Keeping empty symbols of conformity in the public eye is more important, in this way of thinking, than logical or ethical consistency.

    Not to pick on theists. It’s the same with almost every ideological grouping.

  7. Polichinello says:

    It is interesting that the people who want it to remain seem to be the ones claiming it doesn’t really mean anything. If it isn’t important, then get rid of it.,

    Of course it means something. It’s a way of saying, “I take this oath seriously.” Just as “God only knows” means “I have no idea and likely won’t ever know.” The reason I get peeved about these campaigns is that they’ll inevitably lead to a sterilization of our language, where we have to be ever vigilant for references to any sort of deity. “So help me God” is nice, sonorous ending to an oath and it confers an air of solemnity. Further, everyone there is an adult–AFAIK, the oath-taker need not say it, if he doesn’t want to–and no one is being asked to participate in some auto-de-fe.

  8. If he didn’t say it, it would be all you heard about in the news for a month. I realize that is the fault of the public and the media, but he is still going to say it to avoid the wrath of overwhelming peer pressure because there are more important things on his agenda. This peer pressure God is exactly the one we are fighting. We aren’t worried about the real one because he doesn’t exist.

    Our youth does an impressive job of seeing to it that our language doesn’t go sterile.

  9. Polichinello says:

    This peer pressure God is exactly the one we are fighting.

    You’re picking an awful way to to do it. Every time one of these rulings go down, it only energizes religious interests. Again, the example of Europe, where you have real state religion and more secular societies is instructive.

    Our youth does an impressive job of seeing to it that our language doesn’t go sterile.

    By making it septic, yes.

  10. Caledonian says:

    Those dang kids. Why can’t they stay off my yard?

    In my day I walked uphill both ways in the snow to walk on other people’s yards. They don’t know how good they’ve got it.

  11. Steve C says:

    Gawd this blog is just atheism daily. There are a million other blogs on the internet that do this, and they suck too.

    You’d think there’d be something novel the in idea of “Secular Right”.

    Later.

  12. PM says:

    Iu’d rather see the “so help me god” gone, but really, this is such a small thing…

    I think that the earlier point about State sanctioned religions in Europe is accurate–the (over)use of god phrases everywhere only cheapens tha association. I think there is a parallel with the singing of the national anthem at every sports event–most people just mouth along, and while they might recognize the tune, they don’t really know the words, nor is there any meaning or significance in the repitition.

  13. Polichinello says:

    Those dang kids.

    Snappy AND original.

    You should go into show business.

  14. Whoa, a drive-by whining. Why do people do that?

    I have a link for you Steve: http://letmegooglethatforyou.com/?q=blogs+that+don%27t+suck+-atheism

  15. Donna B. says:

    The oath of office is insignificant because we, the electorate, do not really expect anything more than lip service to said oath.

    I’d be really happy if a president upheld the constitution in his service, however, I no longer expect this. I’d be content with “so help me Thomas Jefferson”.

  16. Cass Rice says:

    To Steve C-
    The blog is “SECULAR” right. The topic is perfectly appropriate. Conservatism WITHOUT religion.

  17. J. says:

    “So help you, Secular Conservative Deity or non-Deity of your choice.”

  18. Cass Rice says:

    What about ‘so help your conscience’?

  19. J. says:

    Given secular-Darwinian premises, telling lies could be as effective a strategy to advance one’s interests, as like truth-telling: that one says a oath or not has no bearing on what one says–even for a believer (say a catholic mafiosi). Or jus’ plead the fifth. Indeed back in the day, mobsters probably felt justified in lying/perjury since the courts were ruled by WASPs, or jews, etc.

    Which is to say, the religious do have a point re truth telling: with no spiritual punishment, self-interest would seem to suggest “don’t get caught” as the de facto code (and Hobbes suggested as much). Ergo, prevaricate, when it’s in your best interest.

  20. ◄Dave► says:

    What about ’so help your conscience’?

    Thanks for the chuckle. A politician is far more likely to actually believe in and fear a god, than to have a functional conscience. ◄Dave►

  21. PM says:

    @J.

    Or, if there is a god, just interpret his “word” to mean whatever you want it to mean–pick your bible quotes, take them out of context, etc.

    Acting in one’s own personal best interest isn’t something that is excluded by belief in any particular diety.

  22. J. says:

    Well, there’s a bit more to it, isn’t there: were religious truths to hold, lying under oath would be accounted a sin, perhaps “cardinal.” If not, then it’s just “don’t get caught.” The oath then sort of functions like a bond, in a way.

    Most modern humans probably think that’s silly, but back in the day, priests had great disputes over the significance of lies, or equivocation (often a way to avoid outright lies). Ordinary perps often still deliberate over whether to tell untruths in regards to criminal testimony (and polygraph tests also indicate how serious truth telling is in certain contexts).

    Which is to say, the neo-Darwinist crew has tended to overlook the “ethics of truth-telling”, however trite that seems ( Kant was quite aware of the issue). What if Bush and Co lied (under oath, really) about WMDs or greatly exaggerated the dangers? Not only is that illegal, but most would say highly unethical, if not “evil.”

    The secular -machiavellian of course merely says so what; if there are no spiritual punishments–no just desserts—it doesn’t really matter: misrep, if it helps our cause, is acceptable. The catholics of course say otherwise (the calvinist tradition in ways closer to machiavelli, really).

  23. Gotchaye says:

    J, who really believes that? I can’t think of a prominent contemporary atheist who could be described as a secular-machiavellian. In fact, my impression has always been that the most powerful motivating force of modern atheism is a respect for truth in itself. It’s often the dishonesty/hypocrisy of religious figures that elicits the most criticism from atheists.

    Sure, religious beliefs give people purely selfish incentives to not lie. However, we already have lots of incentives to not lie, many of which are only purely selfish with a uselessly broad definition of selfish. And it seems a bit odd for you to criticize irreligion for insufficiently valuing truth just before turning around and speaking approvingly of religion on account of its social usefulness. It’s a bit hard to tell where you’re coming from personally, but I think it’s obvious from a cursory examination of online articles, blogs, and discussion boards which side is the more concerned with believing and teaching things because they’re true and which one cares more (than the other) about believing and teaching things because they’re useful.

  24. J. says:

    For those who assume those beliefs have no justification, the desire to do good, not lie, etc. may seem selfish. For the believer, they are probably or hopefully not done for selfish reasons, but done from a sense of obligation to do the right thing, more or less(as Kant suggests as well via the categorical imperative). The pious person does not bear false witness, because that’s a sin (of course, many religious people do bear false witness, but it’s still a consideration for many). For a real Darwinist–or secular machiavellian–he’s not troubled by any spiritual concerns–merely by opinion or something. So Darwinist X may be more tempted than Believer X to do “evil”/criminal/injust acts, since he does not believe in any punishment (a bitconjectural, but a consideration at least).

    That said, I am not saying that’s sufficient proof that religious people are more ethical, or that that proves the value of scripture. I am well aware of the force of skeptical arguments. The point’s more in line with a pragmatist sort of explanation: religious concerns could conceivably result in “good” acts–whether telling the truth, or playing fugues. (That’s not to say that religious thinking does not result in bad acts).

    And Hitchens for one sounded rather machiavellian when pitching the IWE. As did Harris, when arguing for torture as a bargaining chip.

  25. Gotchaye says:

    To the extent that religious belief gives unselfish reasons for ‘doing good’, then that’s not a unique benefit of religious belief. Irreligious people can evidently still have a moral sense – the capacity to understand ‘sin’ as wrong in itself is not limited to the religious (the proof being that many atheists do understand evil acts as absolutely wrong). The unique benefit that you’ve been arguing for is that religion also provides a fear of punishment, an incentive which is purely selfish.

    I’ll certainly agree with you that religious concerns can result in good actions. I hadn’t gotten the impression that anyone was denying this, though.

    Finally, I think there’s a distinction between taking a Machiavellian stance on one issue and being the sort of person you described as a secular-machiavellian. Your S-M seems to be a sociopath.

  26. J. says:

    Many virtuous acts might involve a sacrifice or loss of some type, so saying that they are all done for selfish reasons seems a bit inaccurate. Consider a witness testifying (and swearing by oath) against powerful gangsters charged with murder, realizing that she could face retaliation for ratting someone out: she tells the truth because it’s the right thing to do, not because it furthers her self-interests.

    That’s one problem with the utilitarian and/or Darwinian sorts of approaches to ethics and dare we say Justice: why should anyone ever rat out the bad guys, when doing so could bring a great deal of pain, if not death? And in some urban area controlled by gangs, most locals frown upon a snitch: the consensus for many is that telling the truth is wrong in some sense. That’s sort of a traditional hollywood formula, but seems to hint at a concept of justice which is not merely “hedonistic” or naturalist.

  27. Caledonian says:

    “she tells the truth because it’s the right thing to do, not because it furthers her self-interests”

    That is an especially narrow vision of self-interest.

    I would argue that people always act in their perceived self-interest. It’s just that what they perceive their selves to be, and how they see the potential consequences of their actions, varies wildly from person to person.

  28. Meckstroth says:

    J. I have been an atheist for 45 years, and my observation/conclusion is that atheism says nothing about morality, and religion says very little. Morality is how we treat our fellow humans, and has nothing directly to do with a supreme being concept. As a committed atheist, I felt it was necessary for me to develop my own morality, and I have.

    I treat others well, and stick to a policy of truthfulness simply because I have a vision of a successful civilization, and in that vision, that would be the most effective way for people to behave.

    I see lying as a source of chaos, robbing and stealing clearly as non-supportive of a civilized culture. I would not however sacrifice my life to tell the truth and risk death.

    I would deceive appropriately in a greater cause to remain alive and fight against evil. This is in contrast to Christians, because their leader told them NOT to resist evil (Matt 5:39).

  29. Meckstroth says:

    I don’t think anyone has yet commented that the oath not only violates the spirit of the First Amendment, it also violates Section 6, article 3 of the Constitution:

    “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.”

    And you find this also in most state constitutions, for example, Tennessee:

    Article 1
    Sec. 4. That no political or religious test, other than an oath to
    support the Constitution of the United States and of this
    State, shall ever be required as a qualification to any
    office or public trust under this state.

  30. J. says:

    I would argue that people always act in their perceived self-interest.

    So justice is a construct more or less, according to that view: that a majority of stalinists claim it’s in their best self-interest (or state’s best interest) that kulaks must be liquidated, that’s justice for them. When a majority of brownshirts decided killing jewish people was acceptable –in their best interest–was that acceptable? No. Obviously ethical hedonism–the basis for utilitarianism–can easily become a type of totalitarianism, or tyranny of the majority.

    Moreover, don’t we respect the few germans who did protest the nazis–say Bonhoeffer–more than we respect the vast majority of “willing executioners,” precisely because they chose to uphold what they took to be Justice, even though they suffered or paid the price, of ten with their lives? I think we do.

    I suggest religion does offer more support for a type of moral realism (ie values/morality as objective and mind-independent, not merely constructs or “memes”) than does atheism, Darwinism or utilitarianism; of course not all religious people are moral and we should be aware of the hypocrisy of many religious leaders. Both new and old testaments offer support for objective morality as well (10 Commandments for one). That does not imply that all the events of the Bible are true, but that the code has ethical significance, beyond the usual college-ethics BS session (At the same time, I grant that it is difficult to offer some necessary proof of ethical objectivity (moral realism). I think even Kant’s CI becomes a type of consequentialist theory—).

    Oaths exist to sort of affirm a commitment to moral objectivity (as does the word “God” really)–i.e. upholding the Constitution. While agreeing that it should not be a test, the oath-swearing symbolizes the seriousness of the politician’s duty.

  31. J. says:

    That may be a bit ponderous: ‘scuzi. The Founders themselves carried on the tradition of Lockean natural law and rights, rather than utilitarianism–Jefferson sort of ducks the issue by claiming rights were self-evident and so forth, but I do not think he or the other FFs ever meant those inalienable rights were merely in “your best interest” (a type of thinking more akin to Hume, Darwin, Nietzsche, ethical hedonism, etc): they are objective, whether philosophers, or scientists lawyers, can prove that or not. Obviously hypocrisy a problem with the Declaration, if not the Constitution (Locke himself denied rights to the natives, I believe, when his palsie Shaftsbury wanted to take over the Carolinas or something). That said, Jefferson and Madison did agree to oaths, and to some prayers.

  32. Gotchaye says:

    J, I think you misunderstand where many of us are coming from.

    One source of confusion is in the different meanings given to ‘selfish’ and ‘self-interest’. I’ve been using ‘purely selfish’ to describe what you mean when you talk about motivations being selfish or self-interested. Caledonian is expressing the truism that we do what we want to do. No one else is controlling our actions – if someone sacrifices his life for a cause, it’s because he wanted to do so. Because we always choose the course of action that appeals to us most, we can be said to be always acting out of self-interest (leaving aside concerns about our preferences changing over time, the distinction between short-term and long-term goals, etc). Morality does not force us to act in certain ways by magic – it operates by determining our preferences, producing desirable and undesirable feelings in us as the result of particular actions. We avoid doing evil because we find doing evil to be abhorrent.

  33. J. says:

    And I don’t think you and the other self-professed atheists on SR quite realize the implications of a human-made justice or pseudo-morality (really, relativism, and arguably no morality at all). What appeals to X doesn’t appeal to Y (or a state of Y’s). I don’t think the Founding fathers were ethical subjectivists, any more than their mentor Locke was: regardless if natural law could be established by proof or not, they held certain rights to be objective, and valid, inalienable. That’s not the same as saying rights like Due Process, or Habeas corpus, may (or may not be) in our best interest, or may appeal to us, or not.

    Honoring someone’s rights might not be something you want to do, either (or say a judge, or cop). The law exists (moral objectivity in a sense) to prevent personal preference or whim from interfering with those rights.

  34. Caledonian says:

    On the contrary, law exists to ensure that people’s whims and personal preferences interfere with human rights. It merely specifies whose whims and preferences will predominate.

  35. Grant Canyon says:

    I would object to the notion that there is such a thing as “objective morality” and to the idea that, in absence of a belief in such a thing, the only alternatives are amorality, purely subjective morality or relativism.

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