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Oliver v. State Tax Commission2/13/2001
des for criminal prosecution for anyone who refuses to make the required certification, Oliver asked the state tax commission whether he would be prosecuted for refusing to sign the property tax form containing the reference to God. Oliver said a tax commission representative told him that decision belonged to local prosecutors. Oliver then asked candidates for Christian County prosecutor whether, if elected, they would prosecute him for refusing to sign the property tax form with the reference to God. None of the candidates took a position on the issue.
In 1999, Oliver submitted his property tax form but again refused to sign it. This time, however, Oliver did not include his own affirmation. The Christian County assessor's office accepted Oliver's form, apparently without incident. Oliver was not prosecuted for refusing to make the certification to his list, and the statute of limitations for such a violation has now passed.
Oliver and the forthrightly named Freedom from Religion Foundation brought this action seeking declaratory and injunctive relief, which included in it a request for injunction against Oliver's prosecution and a declaration that section 137.155 is unconstitutional under federal and state constitutions. His claims under the First Amendment to the United States Constitution arise under 42 U.S.C. sec. 1983.
While Oliver currently has no need of an injunction, his obligation to file his list of taxable property is annual. Thus, there is a live controversy between Oliver and the state taxing authorities over this issue that is appropriate for declaratory relief pursuant to Rule 87.01.
The First Amendment and "So help me God"
Oliver claims that including the phrase "So help me God" in the tax forms violates the establishment clause and the free exercise clause of the First Amendment to the United States Constitution, as well as the separation of church and state provisions of the Missouri Constitution. Oliver also claims the statute denies him equal protection of the law. These claims are addressed in order.
The oath in judicial proceedings came to western civilization from ancient Greece and has become part of our legal tradition with the English common law. From earliest times, an oath was a pledge that invoked a deity, and breaking one's oath had super-natural or otherworldly consequences. To the Greeks, the oath served three functions:
First, as a solemn promise or declaration to tell the truth; second, as an appeal to a god or gods who would guarantee the promise; and third, as a "religious sanction" in the nature of a threat of punishment if the oath taker committed perjury.
At common law, the oath taker was deemed to be taking an oath to the Christian God. 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).
When George Washington took the first oath of office as president in 1789, he recited the words prescribed in article II, section 1, of the United States Constitution and then added these words, which are not found in the Constitution, "I s
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