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The official oath survives

A frequent challenger of religious displays by the government failed Friday, but only for technical reasons, to erase from the presidential oath — and, by implication, the judicial oath, too — the phrase “so help me God.”  The D.C. Circuit Court, without dissent, rejected a lawsuit targeting Chief Justice John G. Roberts, Jr., and others for including those words in the oath given to President Obama last year.  The decision in Newdow. et al., v. Roberts, et al. (Circuit docket 09-5126) can be read here.

Two judges on the panel concluded that the challenge by a well-known California atheist, Michael A. Newdow, along with 28 other individuals and various humanist, non-theist, non-religious and atheist organizations, no longer raised a live issue as to the 2009 oath, and that the challengers had no right at this point to contest the use of the same oath at inaugural ceremonies due in 2013 and 2017.  The challengers also were turned aside in their constitutional complaint against prayers said at the opening and close of the inaugural ceremony for President Obama. The third judge on the panel argued that the case should be decided on the merits, and voted to uphold the constitutionality of the oath including the reference to God.

Besides challenging the inauguration oath, Newdow and the others had also contended that the ceremony was constitutionally flawed because the Rev. Rick Warren delivered a religious invocation and the Rev. Joseph Lowery delivered a religious benediction.  Newdow, who once failed for lack of “standing” in a challenge in the Supreme Court to the phrase “under God” in the Pledge of Allegiance (Elk Grove School District v. Newdow, 2004), had previously failed with challenges in lower courts to a plea to God in the presidential oath taken twice by President George W. Bush.  The third judge on Friday’s panel voted alone to uphold the recitation of such prayers.

In addition to the Chief Justice, the oath challenge was aimed at the civilian and military committees that ran the inauguration ceremonies last year, along with the two ministers, Warren and Lowery.  In the Circuit Court, the oath as written (and similar oaths used by state officials) drew the defense of all 50 states, among other parties.   The same phrase used in the presidential oath is used in the oath that all Supreme Court Justices take, as well as that given to other federal judges and to numerous officials in state and local governments.

In their constitutional protest about the presidential oath, the challengers did not object to Barack Obama choosing on his own to include a reference to God during his inaugural ceremonies.  Rather, they contended that the inclusion of the oath in an officially prescribed form, recited in public, with the Chief Justice and others making a direct reference to God, was unconstitutional because it implied official endorsement of a religious point of view.

As to the use of that phrasing in the 2009 oath, the Circuit Court majority found that the claim was moot because the ceremony was over, and there was thus no live controversy for the courts to decide.  Circuit Judge Janice Rogers Brown wrote for the majority, joined by Circuit Judge Douglas H. Ginsburg.  As to the test of the oath in that form in the next two inaugurations, the majority concluded that at this stage the courts could not answer that question, because it is unknown who will be involved in administering the oath in the future, and because it is unclear just how future ceremonies will be put together.  Chief Justice Roberts, for example, the majority said, has no authority to decide now whether future inaugural ceremonies will use the oath with the reference to God.

Moreover, the majority commented, it is not even clear that there is a requirement that any future inauguration ceremony even be held.  “The inaugural ceremony is a peculiar institution, the whole of which is subject to the President’s or President-elect’s discretion,” it said.  It would be “folly,” the opinion suggested, for a court to issue an order at this time to stop the use of the phrase in a future oath.  That, it added, would be “akin to enjoining a sound technician from turning the Chief Justice’s microphone on when administering the oath.”

While the third panel member, Circuit Judge Brett M. Kavanaugh, agreed that the challenge should be dismissed, he would have done so by rejecting the challenge to the oath and to the inaugural ceremony prayers since he found no constitutional fault with those appeals to God.  Judge Kavanaugh concluded that the atheists would be injured by future use of the phrase in presidential oaths or by verbal prayers, and that an order of the court forbidding the reference to God and the prayers, if such an order were to be issued, would be obeyed by the Chief Justice and by inaugural planners.

Turning to the merits, however, the judge said that the reference to God in the oath and the opening and closing prayers at inauguration ceremonies were similar to the use of prayers at the beginning of congressional and state legislative sessions — a practice upheld by the Supreme Court in 1983 (Marsh v. Chambers).  That precedent, he said, is binding on the Circuit Court as a lower court.

Both sides, in their papers in the case, used an incorrect title for Chief Justice Roberts — “Chief Justice of the United States Supreme Court.”  In a footnote, the Circuit Court recalled that the proper title is “Chief Justice of the United States.”