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?