One facet of the upcoming presidential inauguration is a lawsuit concerning the form of the oath of office. Dr. Michael Newdow, the Appignani Humanist Legal Center, and other secularist organizations have filed suit to stop Chief Justice John Roberts from prompting Barack Obama to say, “So help me God,” after he finishes the oath written in the Constitution.
Prof. Howard M. Friedman links to the documents in the suit. The plaintiffs say that they don’t object to Obama adding “So help me God” as his own expression of faith or promise, but for the Chief Justice to demand them would amount to a government official insisting on an expression of religious belief. Which of course it would be.
Prof. Eugene Volokh has written that the lawsuit is likely to fail because of a precedent from 1983 about legislatures’ prayers. U.S. courts have decided that the founders didn’t really mean all they wrote in the Constitution against mixing religion and government because they mixed those practices themselves. However, while the precedent Volokh cites had direct bearing on Newdow’s 2005 suit about inauguration remarks from clergymen, neither that precedent nor the 2005 case addressed the oath of office.
The historical side of this question is that for many years people have written that George Washington added the words “So help me God” to the end of the constitutional oath at his first inauguration. For example, in a New Yorker article on inaugural addresses (summary here), Prof. Jill Lepore repeated that belief without examination. Government lawyers have defended the custom by claiming the precedent was that old. However, as I’ve described, that tradition actually goes back only to Washington Irving and his circle in the 1850s.
Prof. Peter Henriques is writing an amicus brief on this case, addressing the historical side only. He plans to argue:
- The Comte de Moustier, a French diplomat, took careful notes on the first inauguration ceremony, and didn’t note down “so help me God.” Neither did any other witness.
- It would have been out of character for Washington to change the oath from what was in the Constitution—a Constitution he had, after all, helped to write.
- With the oath for the Vice President and members of Congress under discussion at the time, people would have been especially sensitive to a precedent from the President, yet no one mentioned him adding “So help me God.”
One positive outcome of this discussion is wider acknowledgment that there’s no good evidence for the extended oath in 1789. Cathy Lynn Grossman of USA Today interviewed Beth Hahn of the Senate’s Historical Office:
Although the website and video produced by the official committee in charge of the inauguration say Washington set this precedent, experts at the Library of Congress and the first president's home, Mt. Vernon, now say otherwise.Hahn deserves credit for acknowledging the error.
Beth Hahn, historical editor for the U.S. Senate Historical Office, concurs. “The first eyewitness documentation of a president saying ‘So help me God’ is an account of Chester Arthur’s Sept. 22, 1881, inauguration in the New York Times,” she said Wednesday.
Unfortunately for Hahn, she puts the phrase in George Washington’s mouth in the video called So Help Me God, posted on the website of The Joint Congressional Committee on Inaugural Ceremonies.
“When I made the video, it was common wisdom that he said it, and I did not check it,” Hahn said. “After investigating this, I would say there is no eyewitness documentation that he did—or did not —say this.[”]
ADDENDUM: At the American Creation blog, Ray Soller posted a report about a 2007 discussion of Washington’s religious and constitutional beliefs at the National Constitution Center, with Prof. Henriques as one of the panelists. It includes a link to a podcast recording of the event. In addition, Henriques’s article reflecting his brief is available here.