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Friday, 3 June 2011

"We don't do God": religion in the public domain

Published in Halsbury's Law Exchange here

In Tom Wolfe's classic novel The Bonfire of the Vanities there is a very funny passage that will chime with anyone who has seen one of the more colourful litigants in person in action. In Manhattan, a most unfortunate character named Herbert Cantrell is on trial for manslaughter. Herbert has renamed himself "Herbert 92X" pursuant to his religious beliefs, although the sincerity of those beliefs is open to question. He is represented but his lawyer is so hapless, and Herbert so vociferous, that Herbert spends most of the time addressing the court in person. He insists on beginning each day in court with a reading from the Koran, and the judge, an irascible sort named Mike Kovitsky, allows this to happen to let the volatile Herbert let off steam and thus save time in the long run.

One day Herbert feels that he has been short-changed by the time allotted to his reading, and demands the right to continue. Kovitsky snarls that “We happen to live in a republic, and in this republic there is a separation of church and state”. In response Herbert triumphantly tells the judge to look behind himself, where emblazoned on the wall of the court are the words "In God We Trust". The court dissolves into fits of ill-restrained giggles; with the exception of Kovitsky, who explodes into rage, although he finds time to compliment Herbert for being so observant.

Such occasional religious references appear in various places in American public life in reality too, and according to this report from the UK Supreme Court blog the US Supreme Court has just refused to consider a challenge to the use of the words “So help me God” in the Presidential inauguration ceremony.

The case was brought by one Michael Newdow, a private individual. A few years previously Newdow had brought proceedings seeking to exclude the words “under God” during the Pledge of Allegiance in his daughter’s classroom each morning. That case ultimately failed on the ground that Newdow lacked standing to raise the issue on behalf of his daughter.

His later action initially sought an injunction to prevent the Chief Justice, John Roberts, from reciting the optional religious wording during President Obama’s ceremony in January 2009. He alleged that the wording violated the Constitution and infringed his freedom of religion (referring to the First Amendment’s establishment clause). The relief sought was later amended to include future inaugurations as well.

The case failed on the ground that the plaintiffs lacked appropriate legal standing to bring the case. Further, according to this website,

Acting Solicitor General Neal Katyal wrote in his brief: “Because the content of the inaugural ceremony is entirely dependent on the president or president-elect’s wishes, only a judicial order running against the president or president-elect would result in the relief that [the atheists] seek. But [they] have not filed suit against the president or president-elect.”

Mr. Katyal added that the appeals court had emphasized that “a court would not have the authority to enter an injunction directly against the president in the exercise of his executive functions or against the president-elect (a private citizen) in the exercise of his personal religious beliefs.”

Leaving aside the technical legal and procedural points about standing, the case throws up an interesting question: is the President, or any other public official, merely expressing a personal view – protected by the right to freedom of speech and freedom of religion – or bringing religion into the public sphere where it should not be permitted because of the separation of church and state?

Other questions immediately present themselves too: what if the official has campaigned during the election partly on his or her religious faith? Is there a difference if she is appointed rather than elected, so that no democratic imprimatur can be claimed for her beliefs? Does it matter if the role is a narrow, technical one in respect of which religious beliefs can be seen to be irrelevant, as opposed to one with a broad scope such as that of president?

It seems to me that Mr Katyal’s reasoning is sound: the candidate should be entitled to make religious references in his or her speech, but only as an expression of personal faith.

Any public role should be required by law to be conducted without fear or favour towards all citizens, including all religious groups, which should effectively preclude any favouritism or other improper action, religiously motivated or otherwise.

That being so, expressions of private belief in public ceremonies should be unobjectionable. Indeed, it would be more honest for a public figure to be open about his or her beliefs if there is any suspicion that they have a role in his or her decision-making, as was inferred in relation to Tony Blair, for example.

On the other hand, it also follows that there should not be a compulsory religious element in public events, for that would be contrary to a separation of church and state and the requirement for the state to be neutral as between competing religions (and non-religious belief systems). In America this is easy to enforce legally because of the establishment clause. In Britain, however, it runs directly counter to the status of the Church of England. One suspects that if Mr Clegg’s constitutional reform effort gains the sort of momentum that it has so far lacked, that status may soon be within his sights.


  1. The acting Solicitor General's comment that 'the content of the inaugural ceremony is entirely dependent on the president or president-elect’s wishes' is a confusing one. So the president can do whatever he wants for the ceremony? Prance around naked and sing nursery rhymes? Surely there is some requirement that he actually take an oath.

    The oath must surely have some legal standing. When the Chief Justice fluffed the lines while inaugorating Obama, I remember reading reports that they had repeated the oath-taking in private later on because Obama was concerned about someone challenging whether he was really president in virtue of the fact that the words had been fluffed.

    So the oath must have some legal standing as a performative: a person actually has to have done it to be the president (which is not to say that anyone can do it and become president). So since it has legal force, then due to separation of church and state, it should not make any mention of God.

    Mind you, when the president swears I guess he can swear on the bible or whatever else he wants. So saying 'So help me God' is ok. It's just that the oath itself shouldn't be religious. The reference to God in the pledge of allegiance for example, should be removed.

  2. Yes I should have made the point clearer:

    - the oath should be secular, and prescribed;

    - the President can swear on whatever he or she likes, as a personal statement of his or her belief system.

  3. I'm still interested in the question about the legal standing of the inauguration oath, because that will affect the issue. If the oath is purely ceremonial with no legal standing then it can contain religious statements with no problem. But if it actually has legal standing in that the president-elect must take it to become president, then it shouldn't contain anything religious. Any idea James what the status of the oath is?

  4. According to the not always perfect Wikipedia:

    "The Vice-President-elect takes the oath first. Unlike the president, the United States Constitution does not specify an oath of office for the Vice President. Several variants of the oath have been used since 1789; the current form, which is also recited by Senators, Representatives and other government officers, has been used since 1884:

    “ I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.[8] ”


    At noon, the new presidential term begins. At about that time, the president-elect takes the oath of office, traditionally administered by the Chief Justice of the United States, using the form mandated in Article II, Section 1 of the United States Constitution:

    “ I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States. ”

    According to Washington Irving's biography of George Washington, in the first inauguration President Washington added the words "so help me God" after accepting the oath. This is confirmed by Donald R. Kennon, Chief Historian, United States Capitol Historical Society.[9] However, the only contemporaneous source that fully reproduced Washington's oath completely lacks the religious codicil.[10] The first newspaper report that actually described the exact words used in an oath of office, Chester Arthur's in 1881,[11] repeated the "query-response" method where the words, "so help me God" were a personal prayer, not a part of the constitutional oath. The time of adoption of the current procedure, where both the Chief Justice and the President speak the oath, is unknown.

    There is no requirement that any book, or in particular a book of sacred text, be used to administer the oath, and none is mentioned in the Constitution. With the use of the Bible being customary for oaths, at least in the 18th and 19th centuries, a Bible was generally used ..."

    So while the oath/affirmation does have legal standing (required by the Constitution), it does not have to be religious, thus leaving it to the personal choice of the President-elect.

  5. Neither of Obama's attempts to take the oath were Constitutional. Although Obama essentially repeated the oath after Roberts prompting in the first person, at the end, Roberts ASKED Obama to affirm his oath by saying, "So help YOU God?"

    Obama then said, "So help me God," but if he intended to affirm his oath, he should have said, "I do."

    However, it was Unconstitutional for Roberts to even ask the question...he should have said "So help me God." Then Obama should have repeated it.

    The same thing happened the next day, too. And I don't believe for one second that the Chief Justice of the SCOTUS was not aware that he violated the Constitution when he asked Obama to affirm his oath to the office by asking him, "So help YOU God?"

    Jesus H Christ. We have a corrupt federal government.