A New Species of Oath

George Washington reflected the views of the overwhelming majority of the Founding Fathers when he said in his "Farewell Address,"

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness - these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked,Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

If there are three items on every conservative's agenda, they are here in Washington's Address:

The Father of his Country says to toss these out the window if religion is ever separated from oaths.

Yet religion has been excised from just about everything in government, as a judicial scalpel ("separation of church and state") has been wielded by a Freddy Kruger-like judiciary. The oath has been a bloody but silent victim of the massacre.

The Old Oath and the New Oath

At the time the Constitution was ratified, the very nature of an oath was universally understood to be a calling upon God to witness the truth and judge the falsehood of the testimony. As a result, U.S. Supreme Court Justice Joseph Story observed, "infidels and pagans were banished from the halls of justice as unworthy of credit."

John Locke believed in freedom for all Christian denominations. But Locke did not believe the civil magistrate should tolerate atheists. The constitution he drafted for Carolina did not allow atheists to hold office. And in his Essay on Toleration (1685), he specifically exempted the atheist from the civil protection of toleration:

Lastly, those are not all to be tolerated who deny the being of God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all; besides also, those that by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge the privilege of toleration.

Oath as "Religious Test."

After America's Declaration of Independence from Britain, most states dropped their requirement that office holders be members in and confess doctrinal agreement with the Church of England.  But rather than substitute another denomination, states eliminated "religious tests" altogether, requiring only a generic Christian belief. Delaware's Constitution of Sept., 1776 (Art. 22) required:

Every person who shall be chosen a member of either house,
or appointed to any office or place of trust . . .
shall . . . make and subscribe the following declaration, to wit:
"I ________, do profess faith in God the Father,
and in Jesus Christ His only Son,
and in the Holy Ghost, one God, Blessed for evermore;
and I do acknowledge the holy scripture
of the Old and New Testaments to be
given by divine inspiration."

Article VI, para. 3 of the U.S. Constitution did not alter the status quo, but rather protected it:

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.

At this point in time, the requirement of "an oath" was a requirement of an act of religious worship, a solemn declaration made in the presence of God. (The option to "affirm" rather than "swear" was not included for the benefit of atheists, but for pacifistic Quakers, who would "not swear at all," but did believe in God.) Whatever sociological momentum might have been building, legally speaking, Article VI did not change the basic definition of an oath.

After signing the Federal Constitution, William Blount returned to Tennessee and helped create the 1796 Tennessee Constitution:

Art. VIII, Sec. II. No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this State.

Art. XI, Sec. IV, That no religious test shall ever be required as a qualification to any office or public trust under this state.

Most states had similar requirements, often drafted by those who signed the federal Constitution.

Decades after the ratification of Article VI, the French journalist Alexis de Tocqueville observed the following during his travels through the states:

While I was in America, a witness, who happened to be called at the assizes of the county of Chester (state of New York), declared that he did not believe in the existence of God or in the immortality of the soul. The judge refused to admit his evidence, on the ground that the witness had destroyed beforehand all the confidence of the court in what he was about to say. The newspapers related the fact without any further comment. The New York Spectator of August 23d, 1831, relates the fact in the following terms:

The court of common pleas of Chester county (New York), a few days since rejected a witness who declared his disbelief in the existence of God. The presiding judge remarked, that he had not before been aware that there was a man living who did not believe in the existence of God; that this belief constituted the sanction of all testimony in a court of justice: and that he knew of no cause in a Christian country, where a witness had been permitted to testify without such belief.

What made the story newsworthy was not such an intolerant court, but such a brazen atheist.

It was not until 1961 that the states' exclusion of atheists from public office was ruled "unconstitutional" by the U.S. Supreme Court (Torcaso v. Watkins). The basis for the Court's decision was not Article VI, but rather the First Amendment. That Amendment declared that the federal government  "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," which the Court took as an invitation to reach into the Maryland state constitution and amend it at precisely that point where it touched on religion. Article 37 of the Declaration of Rights of the Maryland Constitution said, "[N]o religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God."

Writing in the Harvard Law Review shortly thereafter, Alexander M. Bickel wondered about the broader impact of the Torcaso decision:

The [Torcaso] decision raises at least two immediate problems. One is the validity of the many state and federal provisions prescribing oaths of office ending in the words "so help me God."

The words "so help me, God" are not found in the oaths prescribed in the Constitution. That Article VI did not require secularization of these oaths is seen in the fact that virtually every President since Washington has added the words "so help me, God" onto his oath of office.

Atheists soon challenged the words under the principle of "separation of church and state." They were perfectly logical to do so. That doctrine, according to the Court in Everson v. Board of Education (1947),

means at least this: Neither a state nor the Federal Government can . . . pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

Requiring an atheist to declare that his conscience is aroused to tell the truth by the sure judgment of God certainly violates this principle. Permitting a President to add such language to his Constitutional oath of office could well give atheists a feeling that they are political "outsiders" (Allegheny v. ACLU). But courts have been unwilling to remove outright the phrase "so help me God" from oaths and from public life. To bring the language in line with the doctrine of "separation of church and state," courts have declared the phrase to be an instance of "ceremonial deism," designed to arouse our solemn sense of patriotism, but devoid of theological meaning. In 1844, the Supreme Court, speaking through Justice Story, had said that "deism" was "another form of infidelity," and infidels were not allowed to take oaths. Accomodating the doctrine of "separation of church and state" has turned the oath on its head.

The Westminster Confession of Faith (1647) says that an oath "is a part of religious worship," to be taken only in the Name of God. For a Christian of the old school, using God's Name in a context which has been officially declared to be without theological significance is a violation of one of the Ten Commandments ("Thou shalt not take the Name of the LORD thy God in vain." Exodus 20:7). One can easily imagine Jesus' critique of the new view of oaths: "Woe to you, blind guides, who say, 'If anyone swears by the temple, it is 'ceremonial deism'; but if anyone swears by the gold of the temple, he is bound by his oath.'" (cf. Matthew 23:16-22).

A would-be attorney in California, having passed all the state's examinations and otherwise qualified for admission to practice, asked the State Bar for permission de-secularize the attorney's oath by adding the Trinitarian language from Delaware's constitution of 1776. Modification of the oath was sought in his own case only, not to be imposed on all other prospective attorneys. The request came in the form of a well-footnoted petition which, with appendices, totaled nearly 100 pages, tracing the historical evolution of the oath from "religious test" to "ceremonial deism," and balancing the petitioner's sincerely-held religious beliefs with the "compelling interests" of the state. Without a hearing or any other judicial interaction of any kind, the State Bar  returned a one-paragraph excuse: "the Committee is without authority to modify" the oath mandated by the legislature, and so the petitioner "must take the oath as set forth in Section 6067 of the California Business & Professions Code."

"Petition for writ of review DENIED" was the only response of the California Supreme Court as it chose not to review the State Bar's action, so a complaint was filed in federal district court. The State Bar moved for summary judgment on the grounds that the case had already been adjudicated and decided on its merits, and the motion was granted. On appeal to the Ninth Circuit Court of Appeals, Edward M. Gaffney, then Dean of the Valparaiso University School of Law, was joined by Douglas Laycock of the University of Texas Law School and Erwin Chemerinsky of the USC School of Law in a futile attempt to have a full adjudication of the petitioner's constitutional claims and permit him to take an oath which would fulfill the requirements of his religion. The Ninth Circuit Court retreated to the "Rooker-Feldman doctrine," an obscure procedural rule which prevents federal courts from reviewing State Supreme Court adjudications in bar admissions cases. In a petition for a re-hearing, former California Supreme Court Justice Cruz Reynoso joined on the briefs, arguing that the case had never received full adjudication on its merits, but the petition was denied.

There is no evidence that the attitude of the courts toward this petitioner seeking voluntarily to take a "religious test oath" has been one of overt secular hostility or ideological bigotry. It is more of a blasť bureaucratic intransigence, much like the emotion felt by the windshield of a speeding car toward an oncoming insect. The judicial imposition of secularism upon our legal system and society has been so thorough that the religion of the Founding Fathers appears now as an entirely different species of law, undeserving of deference or accommodation.

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