At common law, the oath taker was deemed to be taking an oath to the Christian God.(FN10) With its religious significance, the oath was the centerpiece of an early common law proceeding known as “wager of law”: an accused would take a solemn oath as to his innocence and then produce a number of oath-takers, usually 12, to swear that his oath was clean. Theodore F. Plucknett, A Concise History of the Common Law 115-16 (5th ed., Little Brown & Co. 1956).
The modern dictionary defines oath to include reference to a deity: “a solemn usu. formal calling upon God or a god to witness to the truth of what one says or to witness to the fact that one sincerely intends to do what one says . . . .” Webster’s Third new International Dictionary 1554 (3d ed. 1976).
Rather than review the entirety of First Amendment law, we consider the cases most closely applicable to this oath.
The United States Supreme Court has never squarely ruled whether the words “So help me God,” as used in section 137.155.1 or similar context, offend the constitution. The guiding principle is that no one can be required by the government to acknowledge the existence of, or belief in, a deity. Torcaso v. Watkins, 367 U.S. 488, 495 (1961).
Zorach v. Clauson implied in dicta that the use of the phrase “so help me God” in courtroom oaths does not infringe upon the First Amendment. 343 U.S. at 313. The United States Supreme Court has also previously considered in dicta the national motto (“In God We Trust”) and the Pledge of Allegiance (with the words “under God” added in 1954), and it “characteriz[ed] them as consistent with the proposition that government may not communicate an endorsement of religious belief.” Allegheny v. American Civil Liberties Union, 492 U.S. 573, 602-03 (1989); see also Lynch v. Donnelly, 465 U.S. 668, 692 (1984) (O’Connor, J., concurring).
The important distinction observed by section 137.155.1 is between an “oath” and an “affirmation.” An affirmation, according to Black’s Law Dictionary (7th ed. 1999), is “A pledge equivalent to an oath but without reference to a supreme being or to ‘swearing.’” With this distinction established, what remains, then, is whether the statute’s invitation to swear to God is constitutionally permissible.
The phrase “So help me God” in the oath required of admittees to the Alabama Bar was struck down in Nicholson v. Board of Commissioners of the Alabama State Bar Ass’n, 338 F. Supp. 48 (M.D. Ala. 1972). That federal court ruling followed an outright refusal of the Alabama Supreme Court to allow Nicholson to practice law unless he took the entire oath including the reference to God. Nicholson would be helpful only if the Court agrees with the memorandum issued by our state’s tax commission that took a similar unyielding position. However, every word of this oath, including the reference to God, is not required by law.
Other cases have dealt with similar challenges. United States v. Oliver, 363 F.2d 15 (7th Cir. 1966), held that the words “solemnly swear” and “So help me God” in the grand jurors’ oaths do not amount to a requirement or an expression of a belief in God. Id. at 19. Doe v. Louisiana Supreme Court, 1992 WL373566, *5 (E.D. La. 1992), rejected a challenge to the phrase “In the year of our Lord” on a law license and notarial commission. The court upheld the use of these phrases as “ceremonial deisms,” which the court said “should not be understood as conveying governmental approval of a particular religious belief.” Id. at *6.
The state here urges us to adopt the ceremonial deism rationale. But we hesitate to label the phrase “So help me God” as a ceremonial deism.(FN17) Just as plaintiff Oliver and the Freedom from Religion Foundation find the use of “So Help me God” offensive because of its religiosity, some religious adherents just as fervently believe that an oath is not an oath unless it invokes the name of God. The latter view has support from the dictionary and from history.(FN18)
Though the government may not require a belief in God, and our institutions are secular, the name of God has always been in our public life, including the solemnization of oaths. At most, the invocation of the name of God in section 137.155.1 is a reminder of the solemnity of the occasion, which each person can interpret in accordance with his or her beliefs. It is indeed an invitation to express a belief in God. But because the option of affirmation is offered, it is equally an invitation not to express such a belief.
The First Amendment requires our laws to be neutral as to religion. Section 137.155 allows a person to “affirm” rather than to “swear.” The statute does not require the invocation of God’s name, and if Oliver and others of similar beliefs wish to do so, they may delete the reference.