Should Nonbelievers Challenge Inaugural Oath and Invocation?

December 31, 2008

Should atheists and nonbelievers sue to prevent the inaugural benediction and the use of the words "so help me God" when Barack Obama takes the oath of office on January 20th?    According to Michael Newdow’s website , more than two-dozen individuals and organizations – including the American Humanist Association and the Freedom From Religion Foundation – have done precisely that.  On Monday, December 29 Newdow, who previously gained notoriety by suing to remove the words “under God” from the Pledge of Allegiance, joined these plaintiffs in filing a complaint in Washington, DC federal district court.  (The Center for Inquiry did not join the lawsuit.)

  The complaint in     Newdow v. Roberts   seeks to enjoin Chief Justice John Roberts, who will administer the oath of office, from adding "so help me God" to the presidential oath prescribed in the constitution.  It also asks the court to declare unconstitutional the use of religious clergy to deliver an invocation and benediction.  The plaintiffs allege that these practices violate the Establishment Clause, the Free Exercise Clause, and the Religious Freedom Restoration Act.

Although CFI has taken no official stance on the issue, I believe this lawsuit is a mistake.  The community of nonbelievers can and should initiate a public debate about whether religious symbolism is proper in government ceremonies.  That debate should be spirited, unconstrained, and freewheeling.  When it comes to filing lawsuits, however, intelligent strategy is paramount. 

For reasons I will not go into here, the merits of the case are not especially compelling.  In addition, any victory in district court would face appeals before an appellate court – and possibly a Supreme Court –   that have been packed with conservative judges and justices .  Many of the sitting judges and justices have a   less-than-robust view of church-state separation .  They could use this case to hand down opinions that harm church-state separation.  Perhaps the best result nonbelievers can expect is for the court to reject the case on procedural grounds.  This could happen if the plaintiffs fail to establish their legal standing to bring the suit.

By setting in motion a lawsuit that may yield bad legal precedent, could the plaintiffs have unwittingly helped to erode the ailing wall of separation between church and state?



#51 r strle (Guest) on Saturday January 10, 2009 at 3:07pm

To cite a very wise person from another blog: Oh boy where do I start.

“Also, Obama has now asked the CJ to add the SHMG words to the oath, which he would not have done if AHA and the atheist groups had not sued in the first place. So the net result of this suit will be bad PR, a waste of money and resources, and the plaintiffs will end up looking silly.”

Considering that Mr. Obama’s stated view of the “Faith Based Initiative” of the Bush Administration is that it will be part of his plan and even expanded and he had definitive plans for a religious invocation delivered by someone who actively campaigned against gay marriage I find your assessment that he would not have asked that SHMG be added to the oath if it had not been for AHA and the suit by atheist groups a very large reach beyond the data.  As for looking silly I say I don’t think one could look much more silly than Mr. Lemke and yet I can assure you his views are much applauded by other contributors to the Open Line opinion section of the Joliet Herald News.  I think you underestimate the tolerance of the American public for silliness.  Finally, I find it hard to understand how someone of your experience could not be aware of the generally bad PR that automatically results from anything labeled Atheist or Secularist.  If gays had worried as you do about looking silly or creating bad PR I think they would still be stuck in their closets with all the negative implications for their rights as U.S. citizens that would entail.

“Most Americans could not care less about the inaug prayer, even secularists and humanists.”

Caring about the inaugural prayer and using it as an issue to raise the consciousness of the American people are two different things. 

“The suit suggests that the plaintiffs have nothing better to do than nitpick.”

I think this point is moot because I, and I’m sure there are many others,  don’t share your opinion.

“As for #48, as I have been involved in 80 or so major cases (I helped get Lemon v Kurtzman started [1971], cooked up the idea for 72 Nobel laureate scientists to file a brief in the SC’s creationism suit, got 12 Nobels and 165 other scientists to do a brief on abortion rights 20 years ago, and won a case against US tax aid to sectarian schools abroad in the 2nd Ct, etc). I’m all in favor of litigation that has a good chance of winning a major point.”

For all your cited accomplishment and those you didn’t cite I say thank you and well done!  But looking at the dates and number of years since these cited accomplishments I hope you can forgive me the smart-ass question; what have you done for the cause lately?  When I look out there I see more Mr. Lemkes than there were in 1971, the pledge still contains “one nation under god”, the money still says “in god we trust”, Congress is still opens every session with a prayer led by a Chaplin paid for by our tax dollars, we now have tax dollars going to support religious organizations in the Faith Based Initiative, prayer around the flag days in our schools, vouchers to pay for educating students at catholic schools and a constant fight to keep so called “Creation Science” out of biology classes.  Oh yes the strategy of only supporting litigation that has a good chance of winning is really paying off isn’t it?  Well at least Atheist and Humanist causes don’t look silly or have bad PR, or do they?

“And that is why humanists and secularists need to outgrow mere negative atheism and cooperate with the large assortment of religious folk who share many of our humanist values.”

Negative Atheism?  Like the kind Richard Dawkins, Sam Harris, Dan Dennett and Christopher Hitchens espouse?  If this is what you think Mr. Doerr I think you have gone over to the dark side.  Religious folk who share our humanist values?  I think that humanists working with religious folk could be equated with Eve making her apple deal with the devil and I am sure you know how that is said to have worked out.  Also, I think that you are confusing values with positions.  Protestant support for a women’s right to choose, Catholic support for keeping creationism out of science class or Muslim support for separation of church and state does not equate to shared “humanistic values.’  Most Protestants, Catholics, and Muslims will tell you that their values come from the divinely inspired bible or Koran.  I don’t think humanists, if asked, would “share” this view.

#52 r strle (Guest) on Saturday January 10, 2009 at 4:16pm


From the site you referenced:
“When he contacted us, Mike Swanson had already written the attorney representing the local government to protest the policy and had been rebuffed.  In fact, the local attorney (perhaps innocently) had mischaracterized Mr. Swanson’s complaint as a complaint about a religious oath being offered to jurors.”

“In asserting this position, Swanson was on firm ground, under both the U.S. Constitution and the Tennessee Constitution. But knowing one is right and obtaining an appropriate change in practice are two different things.”

“What followed over the next several months were a number of letters, written by both me and Mike Swanson, and a presentation that Mike Swanson made before the Judicial Council for Tennessee. I am happy to report that just the other week, Swanson received notification that Tennessee courts were going to modify their practices to make it clear to prospective jurors that they have the option of a nonreligious affirmation in lieu of a religious oath.”

“Reactionary litigation?”
I do remember saying in one of my posts, “there is no reason to pursue a lawsuit.  Why not just threaten to pursue one?”

I think that it is likely that the reason Mr. Swanson’s initial protest was rebuffed was because “the local attorney (perhaps innocently) had mischaracterized Mr. Swanson’s complaint as a complaint about a religious oath being offered to jurors.”  So once they were apprised of the true nature of Mr. Swanson’s complaint they caved because it was probably obvious to the Judicial Council for Tennessee that both the U.S. and Tennessee Constitutions were stacked against them.  What should Mr. Swanson have done if the JC had not decided to modify their practices?  Sit quietly at home writing more letters? You don’t think that letters from Ron Lindsay with the CFI letterhead didn’t raise the specter of a possible lawsuit (one they probably concluded they could not win) in the minds of the JC for Tennessee?

“No law suit was planned because a lawsuit’s publicity would have prompted state legislators to pass an anti-secular oath law, setting back progress for decades.”

I saw no mention of this at the link you provided. 

“Yes, CFI is a think tank.”

I agree that the CFI has a think tank function but it is also “an active agent for social and cultural change in the courts, in the U.S. capital, at the United Nations, and at the grassroots level.”  And all that stuff from the legal department description.

#53 r strle (Guest) on Sunday January 11, 2009 at 9:04am

In Secular Humanism Online News—January 2009

Which I found in my email box as I am sure all who come here found in theirs the is piece By Peter Dawson Buckland titled “The year religion “fought back”, which reviews an article by Polly Toynbee in the Guardian titled “My Christmas message? There’s probably no God,”.  Mr. Dawson makes the following observations, some at the end of the article that I think are germane to the discussion on this blog.

“If indeed, the religious are pushing back, I say that we need to push back harder and more effectively. We, as unchurched or unbelieving people, guided by our empathy and informed moral insight, stand gladly as challengers of the faithful.”

He goes on to say:
“Their days in the U.S. (and I suppose Britain too, though that nation is considerably less toxically religious than ours) of holding themselves as the champions of virtue, mercy, charity, and justice are over. As people concerned with the human condition, we have much to offer. Offer it There is no God. Continue making the world a better place.”

Their days are over?  Not in my little dark corner of the world!

Push back seems to be the order of the day in Texas according to this article in the same on line news.

Religions Continuous War on Women – A View from Texas By Sheldon F. Gottlieb

I can only hope that someone will be silly enough and rash enough to sue “the scientifically ignorant, God-believing and/or pandering politicians” of the Texas legislature if they passing HB109.

#54 Edd Doerr (Guest) on Monday January 12, 2009 at 3:52pm

Re #51, the only feasible reason why BHO asked the SHMG to be added is as reaction to the AHA/atheist suit. Remember that the nutty right has convinced many that BHO is a Muslim. He’s simply heading off more attack. Re the faith-based initiative, at least BHO has said he would clean up the worst of Bush’s errors im that program. But the f-b thing is very hard to challenge in court. Our best hope is that BHO and the Dems will scale it back in favor of secular gov programs. Re motto on money and “uG” on the Pledge, while they probably violate the 1st Amend they are not amenable to successful court attack, as a win for us would mean a con’l amendment to undo a ruling and also cause further damage. Re “negative atheism” it is important to recognize, as Paul Kurtz has made clear, that “mere” atheism and humanism are not the same thing. Indeed, some very prominent nontheists have caused a great deal of damage and have been the very antithesis of humanism; I cite Carl Rove, Milton Friedman (with his faith-based school voucher nonsense), and George Will. The nest way to advance humanism is for humanists to attack the most serious problems in our country and the world: overpopulation, global climate change, attacks on public education, abortion rights, civil liberties, public school secularity, etc. Let me mention parenthetically that two prominent atheists, Hitchens and Nat Hentoff, take the same anti-feminist, amti-humanist line on abortion rights as the pope and the fundies.  As a humanist activist for the past 60 years, most of them as a full time professional, I not only care about advancing humanism but I have seen my share of activity by nontheists that set back humanism.

#55 r strle (Guest) on Tuesday January 13, 2009 at 4:01pm

“Re #51, the only feasible reason why BHO asked the SHMG to be added is as reaction to the AHA/atheist suit. Remember that the nutty right has convinced many that BHO is a Muslim. He’s simply heading off more attack.”

The “only” feasible reason?  Look, Mr. Obama may actually be the wonderful agent of change everyone is hoping he will be (I have my doubts) but he would never have been in a position to run for president and could never have gotten elected if he had not been first and foremost a politician.  One who knows how to deliver the necessary lines at the most opportune times with just the right words in just the right order so that he can get elected.  It amazes me that a person of your experience could come to the conclusion it’s, “the only feasible reason”, as you outline your logic(?) above.  It is my opinion that reasoning like that above and in the rest of #54 and some of #49 has much in common with the reasoning of Mr. Lemke in his piece “Christianity our established religion.”  First choose some slightly related fact/facts that is/are at best tangential to the issue—( Laws against murder, stealing and lying correspond to the 5th, 7th and 8th of the Ten Commandments, and opposite values are not equal)—(the nutty right has convinced many that BHO is a Muslim)—then ignore all relevant directly related facts—(the First Amendment, the treaty of Triopli, the writings of Thomas Jefferson)—(The Rev. Wright issue, BHO’s repeated profession of his Christian values, BHO’s commitment to the FBInt,  BHO’s decision to have a religious invocation)—then make unwarranted or illogical assumptions—( Our founding fathers did not set up a government divorced from religion)—(He’s simply heading off more attack)— and arrive at the necessary conclusion —( Christianity our established religion)—(the only feasible reason why BHO asked the SHMG to be added is as reaction to the AHA/atheist suit).

Well if you are convinced and you can convince your fellow humanists, that as you have constructed it, this boat will float.  Then all I can say is you and anyone else who wants to take it, or anything like it, into battle on the rough seas of the real world will spend more time bailing than fighting and there will continue to be little progress made to the cause of realizing the intent of the framers of the U.S. constitution.  Good Luck

#56 Edd Doerr (Guest) on Wednesday January 14, 2009 at 9:08am

Re #55, I stand by my statement in #51 that BHO requested the SHMG because of the lawsuit. Without that “provocation” he would have said nothing. Of course I know that the US was founded as a secular country [see my section on “The Founding Fathers” in the new book Icons of Unbelief; or I can send you a copy of the section for $5 from Box 6656, Silver Spring, MD 20916]. My whole professional career has been spent defending c/s separation — with a sense of strategy, of course.
  As a politician raised non-religious BHO knew that a successful political career as a liberal black man depended on his having a church commection, so he picked out the most liberal mainstream congregation in Chicago. Remember that Unitarian Adlai Stevenson found it politically necessary to also join a Presbyterian church, for all the good it did. So too with BHO’s frequent references to being a Xian, obviously to counter the vicious conservative charge that he is a Muslim.
  I have no illunions that all humanists will buy my position, as a certain number of them have made it clear that they prefer “fundamentalist atheism” to a principled humanism.
  Xianity is not our established religion and never has been, and vast numbers of Xians fully agree with me.

#57 r strle (Guest) on Friday January 16, 2009 at 9:36am

Re #56 Today the latest issue of Newsweek arrived.

I recommend an article in “Belief Watch” by Lisa Miller which can be found at this link.

#58 r strle (Guest) on Friday January 16, 2009 at 10:07am

After revisiting the suggested link I think it might be a good idea to read all the comments to this well reasoned article so that one can appreciate how ineffectual the narrow self-limiting approach you advocate is to the amount of “Christian” push back that is thwarting any progress on actualization of the First Amendment rights.  I agree with Richard Dawkins when he says Atheists and Secularists need to come out of the closet and, to use a metaphor of Tom Flynn’s, start punching their weight.

#59 Edd Doerr (Guest) on Friday January 16, 2009 at 12:06pm

Re the lawsuit challenging the SHMG inaug matter, on Jan 15 DC fed judge Reggie Walton declined to grant an injunction, ruling that he lacked authority to do so.

To change the subject, the new film “Che” opened today, reminding me that I was there on Jan 1, ‘59 when Castro’s victorious forces entered Havana. By “there” I mean that I was five miles over Havana flying back to the US after teaching for a year in South America. The Wash Post gave “Che” a good review today.

#60 r strle (Guest) on Friday January 16, 2009 at 1:57pm

Lucky you!  You grew-up in a world where we were not “one nation under god” and in god we didn’t trust.  In Jan. of 1959 I was pledging every school morning, after mass, one nation under god and the only flying I did was over desks in my sixth grade classroom with propulsion provided by Sister Electa as a consequence for some minor disturbance I had made in her day.  Isn’t it interesting how viewpoint can be so positioned by perspective?

#61 r strle (Guest) on Friday January 16, 2009 at 3:13pm

To be clear and so I can not be accused of not having my facts straight I must point out that “In god we trust” did appear, first on a 2 cent coin in 1864 and gradually “migrated” to other U.S. coins in an on again off again fashion as the years went by until 1938 when ‘in god we trust” went on and has stayed on all U.S. coins

Paper currency is another story.  The first paper currency bearing the “in god we trust” inscription came out with the $1 Silver Certificates of 1957.  This was a result of a joint resolution of Congress in 1956 that declared “IN GOD WE TRUST TO BE THE NATIONAL MOTTO OF THE UNITED STATES.”  In 1964 the $1 Federal Reserve replaced the Silver Certificate and the motto was included on it and all the other $5,$10,$20,$50 and $100 Federal reserve notes and has remained there ever since.

#62 r strle (Guest) on Friday January 16, 2009 at 3:36pm

Oh I forgot, but I am sure that everyone knows, that ONE NATION UNDER GOD was inserted into the pledge at the urging of religious clergy and the catholic Knights of Columbus, in 1954 during the communist/socialist paranoia some of which is still with us today.  This unreasonable paranoia surfaced when Obama was accused of socialistic tendencies during the campaign and is the basis for continuing the senseless U.S. policies, economic and political, toward Cuba.

#63 Mike Newdow (Guest) on Tuesday January 27, 2009 at 1:11am

Mr. Doerr has stated, “Further, a historian of my acquaintance has examined Newdow’s brief and found numerous errors.”

Would he be so kind as to back up that statement with a listing of these?

- Mike Newdow

#64 Edd Doerr (Guest) on Tuesday January 27, 2009 at 1:52pm

Re $63, will do so when time permits.

#65 San Francisco personal injury lawyer (Guest) on Wednesday January 28, 2009 at 3:21pm

I’m not sure what to think.  The Establishment clause is inherently vague and open to interpretation, but I think we can all agree, to one extent or another, that the Founders did not want the government supporting one religion over another.  In that sense, having the President swear on the Christian Bible seems to flagrantly fly in the face of the spirit of the Clause.  On the other hand, the Establishment clearly says “Congress shall make no law…” Is the President swearing on the Bible a law Congress has passed? Or merely an informal tradition?

#66 Edd Doerr (Guest) on Wednesday January 28, 2009 at 3:46pm

Re #63, the Establishment clause is not all that vague.In the Everson ruling un 1947 the Supreme Court carefully explained it (look it up) and concluded that Jefferson was right in writing in 1802 that the First Amendment erected a wall of separation between church and state. Unfortunately, there has been some erosion of the principle thanks mainly to conservative justices appointed by GOP presidents.
As for the inaug oath,the SHMG is not required by the Constitution, but a president may add words if he chooses, as some tho not all have. The Chief Justice should not add “So Help You God”, tho presidents may well have requested it. In any event there is nothing that can be done about it as the courts are not going to do anything, and if they did Congress would surely override with a pernicious constitutional amendment.
The inaug is over and we need to turn our attention to more pressing problems, which Obama has listed, and to more seroius and pressing church-state problems, as ACLU is doing in challenging federal aid that the Catholic Church uses to impose its antichoice position on certain recipients of the tax aid.

#67 r strle (Guest) on Wednesday January 28, 2009 at 7:32pm

“and if they did Congress would surely override with a pernicious constitutional amendment.”

Mr. Doerr,

I just don’t understand how a man of your experience can use a word like “surely” in the above quote.  Surely in this context is like saying it is almost a sure thing.  You displayed, I think, the same flawed logic when you said BHO asked that SHMG be added to his oath “as reaction to the AHA/atheist suit.”  When I read your post with the quote above, I thought “surely” that cannot be right.  The Framers made the Constitution very difficult to amend.  But to be sure I went in search of sourses that could confirm or deny my hypothesis.  Of the many available I offer the site below that attempts to answer the question “How difficult is it to pass a Constitutional Amendment?”

#68 r strle (Guest) on Thursday January 29, 2009 at 7:37am

oops again I forgot a very important word:

In #67 Please change:

“Also please reread post #63 because in my opinion your post #66 does address”


“Also please reread post #63 because in my opinion your post #66 does NOT address”

Sorry but I find it very hard to proof my own writing just after finishing.  I often see what I meant to write rather than what I actually wrote.  It’s possible this same problem occurred in your post #66.  I think I have a solution that will trade a timely response for accuracy.

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