by Ray Soller

Ray Soller responds to Richard Berg-Andersson's response to his 'vox Populi':

My statement regarding the inclusion of the phrase, "So help me God," reads:

One may say that a President can choose to add these words to the presidential oath, but it is a clear violation of the Constitution, and surely not a good idea for a judicial official to prompt the President to succumb to a religious test of office.

The restraint is upon the Chief Justice of the Supreme Court to administer the oath as prescribed by the Constitution. I am not a constitutional lawyer, but Stephen Carter qualifies in this regard. According to the write-up at the website, "The Paula Gordon Show - The Price of Power," he is a Professor of Law at Yale University, an author, a former clerk to Supreme Court Justice Thurgood Marshall, and he is considered to be among this nation's leading experts on constitutional law. (See http://www.paulagordon.com/shows/carter/)

When, back on October 31, 2000, Professor Carter was asked, "What about 'one nation, under God' in the Pledge of Allegiance?" he replied, "Say it if you believe it, refrain if not, you pick. But it's very different and a serious problem when the Chief Justice of the United States adds '...so help me God' to the Presidential oath. That's not optional and turns the oath into a religious test, prohibited by the Constitution. George Washington said it, but the phrase should not be there." He finally concluded, "Politicians do well to listen and learn. It's when religion and politics blur that we all lose."

I agree with Professor Carter. I trust this clarifies my position.

Mr. Berg-Andersson responds to the above response:

Well, I originally read what you have quoted from yourself above as meaning (and what follows would be my own paraphrase re: how I originally took what you had written) that, while anyone can claim that a President may add "so help me God" to the Oath on his own, it ("it" here, originally seeming to me to be, the President so doing) is unconstitutional. If you, indeed, intended that it be a judicial officer (such as a Chief Justice of the United States) intoning "so help me God" while administering the Presidential Oath which is considered, by you, to be unconstitutional, then I humbly apologize for so misreading what you yourself had intended in that particular sentence.

Nevertheless, re-reading your words in this latter manner does not at all change my opinion that nothing whatsoever of an unconstitutional nature has actually occurred.

You argue that the Chief Justice adding "so help me God" to what he (and the rest of us all watching and listening, whether in person or via television and radio broadcasting) expects the President being inaugurated to repeat is, in and of itself, a "religious test of office" in violation of Article VI, clause 3 of the U.S. Constitution. But the clause in question specifically reads as follows:

... no religious test shall ever be required as a Qualification to any Office or public Trust under the United States.

The essential element here is "Qualification to any Office"- that is: a person cannot be disqualified from serving in (put another way, prevented from taking the Oath for) Federal public office- whether elective or appointive- on grounds of his or her religious belief(s) or, for that matter, the lack thereof. Once a person is otherwise qualified to serve in a given office (such qualification not only including the requisite age and length of citizenship and residency requirements, but also including a determinative finding that the person was validly elected or properly appointed [or nominated and confirmed, if necessary]), no religious test can at all be brought to bear to otherwise deny that person his or her commission to so serve once that person has taken whatever Oath is required, by law, before entering upon the duties of said office.

But that is all the prohibition in Art. VI, clause 3 means!

Essentially, if someone is prepared to take the requisite Oath of Office for the position in question and, further, presents him-or-herself to be so sworn, it has to be presumed that this person has already qualified under the definitions of qualifications as heretofore stated. In the case of a President about to take the Oath, I very much doubt the Inaugural Committee would have gone through all the trouble of organizing and arranging the rather involved Inaugural ceremonies in front of the Capitol were the person about to be sworn in as President not so qualified.

Thus, anything that takes place as part of that Inaugural ceremony- other than the requisite Oaths of Office (that of the Vice-President, as well as the President) themselves- is all so much "window dressing" ancillary to the principal business at hand, that of allowing the newly elected (or re-elected) President to- to here use the actual language of the Federal Constitution- "enter on the Execution of his Office" (Art.II, Sec. 1, clause 8). After all, there is nothing in the text of the very document that requires a President to give an Inaugural Address; nor is there any constitutional basis for having patriotic songs (and even hymns and spirituals!) sung by a choir or played by a military band during the Inaugural ceremonies (which, basically, have precisely the same function as incidental music played by a pit orchestra during scene changes behind the curtain at a Broadway musical, apart from their principal purpose as providing possibly uplifting elements within a most important event as regards the peaceful Transfer of Power inherent in a concept of Republican Democracy).

I have always taken a judicial officer (most usually, the Chief Justice in the case of a Presidential swearing-in) administering an Oath of Office by reciting parts of it to the Oath-taker and having him or her "repeat after me" as something of a "crutch" for the benefit of the Oath-taker him-or-herself. Taking the Oath of Office as President of the United States must be a rather daunting undertaking and, while those who so despise and disdain President George W. Bush- as was also the case with those who, likewise, so despised and disdained President Bill Clinton- might well feel that the President in question (take yer pick!) did not at all take such proceedings all that seriously (if only because of the political agendas of said respective Presidents with which the respective despisers/disdainers did not, or do not, agree), I myself am not going to be so bold as to here suggest that I, somehow, can possibly know just what those two men, in particular, were actually thinking as they recited (twice, yet!) the 35 words of the Presidential Oath as required by the Constitution.

It is quite possible that there might be more than a few "butterflies"- perhaps the presidential knees even knock more than a little bit- during these proceedings and, if it is better for all concerned that a President-to-be merely repeats what the Chief Justice reads to him or her in order to make sure the Oath of Office is, thereby, properly stated by the Oath-taker, so that the now-properly sworn President can then, indeed, "enter on the Execution of his Office" in the manner constitutionally required, then so be it. Thus, I have always presumed that the Chief Justice was merely intoning "so help me God" so that the Oath-taker himself would, if nothing else, remember to say it in what would otherwise be a situation rather overwhelming for any human being; I certainly have never taken it that the Chief Justice- on his own!- was, in effect, determining if the Oath-taker believed in God: for I presume that, were a President-to-be not willing to add "so help me God" to his Oath-taking, it would then not be so intoned by the Chief Justice! (I mean, isn't all this stuff worked out in advance of the Inauguration?)

Mr. Soller himself wrote- in his original 'vox Populi'- that "[a] customary place for a President to acknowledge God's role in our national affairs is in the Inaugural Address. Indeed all Presidents, with one exception, have done so." Well, why isn't doing that an unconstitutional "religious test of office"? After all, isn't the President who does this, in effect, "reassuring" the American People that he or she actually believes in God? If there is to be no "religious test", then why would God (which, at least so far [given the backgrounds of all Presidents to date], has almost certainly been the God of so-called "Judeo-Christian Tradition") even have to be acknowledged by a newly-sworn President in the first place?

The answer to all these questions, of course, is in my own comment above, where I wrote that "there is nothing in the text of the [U.S. Constitution] that requires a President to give an Inaugural Address". Thus, the Inaugural Address is in the realm of "custom", a custom in which the President is permitted rather wide latitude in order to tell the American People whatever he or she wants about the intended policies of, and goals for, his or her Administration, as well as about him-or-herself (including, perhaps, a personal invocation of his or her religious belief[s] and/or asking that the blessings of whatever Deity in which he or she might so believe be bestowed upon the United States of America the new President is preparing to now govern). Again, so long as this is voluntary, there is no "religious test of office" at all being imposed here ("voluntary" implying the opposite of "imposition"): thus, nothing contrary to the Constitution of the United States is even being done in such a case!

Likewise, the same can be said for the- again, where voluntary on the part of the President being sworn- addition of "so help me God" to the Presidential Oath of Office, even with its being so gravely intoned by a Chief Justice of the United States in, more or less, the role of "Official Prompter".

Now, before I close this- for lack of a better term- "re-response", a few words here- if I might- about "religious test for office" which have nothing whatsoever to do with anything Mr. Soller has written:

The prohibition in Article VI, clause 3 quoted earlier by me is a legal prohibition- that is, a constitutional one binding only upon Law and the Government. The prohibition means that no element of government- not Congress, nor the courts, nor the outgoing Administration- can prevent someone from taking a Federal Oath of Office- in the case I am here discussing, that for President of the United States- on the basis of their religion, or lack thereof (so long as, as I've already said, they are otherwise qualified [met all constitutional and any other legal requirements] to serve in that office). Having so noted, however, there is nothing whatsoever to prevent a voter- in the privacy of the voting booth on Election Day- from applying his or her own "religious test for office" while deciding for whom to vote.

Over the past several months, I have received quite a number of e-mails (most of which refer specifically to the case of former Governor Romney possibly being the Republican nominee for President next year) dealing with the issue of whether or not a voter judging a presidential candidate (again, most e-mailers specifically cite Mr. Romney) on the basis of the candidate's religion is, somehow, engaging in an unconstitutional "religious test of office" (many of these e-mailers say "yes"; most, however, answer "no", sad to say- and, as I've said, the vast majority of these e-mailers seem to be primarily concerned with Mr. Romney's adherence to the LDS Church [regardless of whether they say it is OK for the voter to judge Mr. Romney on that basis or not]).

I would say to all those who have e-mailed me on this topic that individual American voters can bring any reason for voting for- or, for that matter, against- a candidate for public office to bear in the course of making his or her decision as how best to cast their respective ballots. If a voter doesn't happen to like a candidate's religion (or the fact that a candidate might not even have any religion at all) and, therefore, chooses not to vote for that candidate primarily on that basis, then that is all within the prerogative of the voter. After all, if a voter decides not to vote for a particular candidate because he or she doesn't like said candidate's hat size or the color of, or direction of any pinstripes on, or even the style of, the candidate's clothing seen being worn during a televised debate, the voter is certainly perfectly free to do so as well.

For, even if one were to argue that such (and, here, I'm now back to the far more serious issue of consideration of a candidate's religion, as opposed to a candidate's wardrobe or hat size) is unconstitutional, how is this to at all even be enforced? The ballot is secret; the voter is all by his or her lonesome while perusing and making choices on that ballot; and, above all, whatever reasoning (no matter how unreasonable- let alone possibly "unconstitutional" [?]) might go into the voter's choices (or, for that matter, not making a choice), such is rather safely ensconced within the voter's own mind and heart.

Personally, I myself do not judge candidates on the basis of their religion when *I* go to the polls (most of the time- particularly when it comes to so-called "down ballot" offices- I don't know what the candidates' respective religious beliefs even are!): for I have more than enough trust in the American constitutional system and its inherent checks-and-balances, both horizontal (Legislative-Executive-Judiciary) and vertical (Federal-State[&local]), to feel that it would be rather difficult for even a President of the United States to, somehow, impose his or her religious beliefs on Americans in general or me in particular. Yes, Watchful Vigilance is ever required (ever keep in mind the ancient Roman dictum that "the Law cannot help those who slumber upon their Rights")- however, so long as the citizenry is so watchful, there is no constitutional means through which even a President's religious belief(s) can overly drive the Politics of the day (one presumes there would, in such a case, be more than enough legislators to be able to block the religious aims of the Executive). A citizenry hell-bent on imposing their religious belief(s)- along with concomitant duties, requirements and obligations attendant to any such religion- on others is a far more dangerous (and, also, far more likely) thing: for, if a vast majority of citizens themselves should take such a position, then the duly elected legislators who represent the citizenry might well be able to carry out the very aims of that citizenry!

But, if I should someday run for public office (fat chance! [;-)]) and my neighbor- who otherwise gets along with me personally- does not happen to like, or even respect, my religion and, as a result, would be driven not to vote for me, there is nothing at all I could do about it in any event- for such would be well within my neighbor's purview. Might such an approach by my hypothetical neighbor in this scenario well be considered to be unseemly, where not even unconscionable? Well, *I* would certainly think so! And I would also think so if said neighbor were to apply such criteria to any candidate for public office (so I am not taking this position solely in relation to how it might affect me personally in the above hypothetical scenario).

However, candidates for public office do not get to choose the reasons individual voters might support, or not support, them. Thus, while the Constitution might not allow for a "religious test for office" once an otherwise qualified candidate has been duly elected, that same Constitution cannot at all stop a kind of "religious test" from being applied in a situation which might, in the end, determine that said candidate is not even elected in the first place!