Reader Dominic Markwordt writes:
I happened to be doing some research for my law review comment and came across the oath all U.S. judges/justices are required to take.
Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: "I, _______ _______, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _______ under the Constitution and laws of the United States. So help me God." 28 U.S.C.A. § 453....
Is it constitutional? It would seem suspect under the Court's current establishment clause jurisprudence given that the oath required for the president in the Constitution does not include the phrase "So help me God." ...
Well, the judicial oath dates back to 1789, and the same First Congress that proposed the First Amendment. Simply including this religious reference would therefore not be an unconstitutional endorsement of religion, under the Marsh v. Chambers Give Me That Old-Time Religious Speech principle.
The Supreme Court has also read the Establishment Clause as prohibiting the coercion of religious behavior. This prohibition is much less controversial than is the prohibition of endorsement of religion. (Lee v. Weisman, which held high school graduation prayer to be unconstitutional coercion, was controversial, but because the dissenters didn't see the prayer as coercive -- they agreed, as I read the opinion, that genuine coercion of religious behavior was indeed unconstitutional.)
On the other hand, in this instance the prohibition of coercion is so uncontroversial that the statute will almost certainly be read as not requiring the "so help me God." Recall that Article VI of the Constitution says (emphasis added),
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
The statute echoes this by allowing an "affirmation," as did the 1789 statute. But the whole point of an affirmation is that it does not involve calling on God; an affirmation would thus necessarily omit the "so help me God." (As I understand it, the affirmation option was placed in the Constitution because some Christian denominations -- such as Quakers -- oppose swearing to God.) And this is further confirmed by the No Religious Test Clause; requiring acknowledgment of God would itself be a religious test.
So never fear coercion here: No judge has to say "so help me God"; he is free to affirm and thus avoid mention of God or even of swearing (with its potentially religious connotation) altogether. But if you're worried about endorsement, Marsh says such endorsement is fine.