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Oliver v. State Tax Commission2/13/2001
wear, so help me God." President Washington's words showed a belief in God and a prayer for His help. The first President's example has been followed by his successors. In addition to the oath of our first president and all of his successors, the phrase "So help me God," and similar references to the Almighty, have been a part of our courtroom oaths, our laws, and other public rituals. See generally Zorach v. Clauson, 343 U.S. 306, 312-13 (1952); School Dist. of Abington Township v. Schempp, 374 U.S. 203, 214 (1963).
The First Amendment, which has been made applicable to the states by incorporation into the Fourteenth Amendment, provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." One might inquire whether the phrase prescribed by this statute constitutes an establishment of religion, that is, the prescription of religion by the state. Separately, one also might inquire whether the prescribed phrase infringes on the free exercise of religion, that is, the right to believe and profess whatever religious doctrine one desires. In the case of this oath, the two clauses invite similar analyses. The reasons that cause rejection of the notion that the oath's words are an establishment of religion also cause rejection of the argument that the Missouri statute impinges on Oliver's freedom to exercise his religious beliefs.
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 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"
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