Volokh: ‘So Help Me God’ Not Required in Air Force Oath

In discussing the recent case of an airman who was rejected for reenlistment because he refused to say “so help me God” at the end of the oath, I and others noted that the rules on this were changed to remove the ability to leave that out last year. Eugene Volokh, one of the top First Amendment scholars in the country, says this is not true, that the text as it stands still allows one to affirm rather than swear the oath.

1. First, here’s the relevant statute, 10 U.S.C. § 502,

(a) Enlistment Oath. — Each person enlisting in an armed force shall take the following oath:

“I, ____________________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.” …

Historical and Revision Notes …

The words “or affirmation” are omitted as covered by the definition of the word “oath” in section 1 of title 1….

Title 1 U.S.C. § 1 indeed provides, “‘oath’ includes affirmation, and ‘sworn’ includes affirmed.” And what is an affirmation? United States v. Bueno-Vargas (9th Cir. 2004) tells us (emphasis added),

An “‘”Oath or affirmation” is a formal assertion of, or attestation to, the truth of what has been, or is to be, said.’” United States v. Brooks, 285 F.3d 1102, 1105 (8th Cir.2002) (quoting United States v. Turner, 558 F.2d 46, 50 (2d Cir.1977)). Black’s Law Dictionary 1099 (7th ed.1999), defines an oath as a “solemn declaration, accompanied by a swearing to God or a revered person or thing, that one’s statement is true.” Black’s defines an affirmation as a “pledge equivalent to an oath but without reference to a supreme being or to ‘swearing.’” Id. at 50; see also Brooks, 285 F.3d at 1105 (reciting these definitions).

So 10 U.S.C. § 502 expressly says that each person may swear or affirm. Likewise, 1 U.S.C. § 1 expressly says that an oath includes an affirmation. And an affirmation means precisely a pledge without reference to a supreme being. Given this context, it seems to me quite clear that “So help me God” in the statute should be read as an optional component, to be used for the great bulk of people who swear, but should be omitted for those who exercise their expressly statutorily provided option to affirm — because that’s what affirming means (omitting reference to a supreme being).

Even looking at the statute standing alone, then, the Air Force thus has no business denying people the ability to affirm, which is to say to omit “so help me God.” And to the extent the statutory “so help me God” language leaves the matter confusing, the Air Force has excellent lawyers — I’m pretty confident that my interpretation of the statute should not be legally controversial.

He also notes, of course, that even if the law did say this, the Constitution’s ban on religious tests for office would overrule it. And then there’s this, from Allen West:

Correct me if I am wrong, but don’t we swear court witnesses to “tell the whole truth and nothing but the truth so help me God”? …

A local commander could possibly waive the final phrase [in the oath], but it is law….

I proudly and honorably took the oath of office as a commissioned officer several times and also as a Member of Congress. That’s what Americans do.

Okay, you’re wrong. Court witnesses can swear or affirm, with or without the phrase “so help me God.” This is not surprising; Allen West is nearly always wrong.

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What Are Your Thoughts?leave a comment
  • http://www.thelosersleague.com theschwa

    I have seen several trials in my area (NE Ohio) and never once did anyone use the phrase “so help me God”, and the court never mentioned God either, before a witnesses testified.

  • D. C. Sessions

    Volokh may indeed be a top-flight Constitutional scholar, but he’s not a Justice on the Supreme Court. As maters stand, and until either a change to the regulation or court of competent jurisdiction rules otherwise, airmen will have to either swear as directed or be booted from the Force, possibly losing benefits they’ve been working towards for years.

  • http://artk.typepad.com ArtK

    Alan West needs to stop watching old Perry Mason reruns and get into a real courtroom. I’ve served on seven juries and gone through voi dire in many more in the last 30 years and never once have I heard a juror or witness be asked to say “… so help me God.” Of course, this is in Los Angeles, home to all kinds of unsavory liberals, so it could just be an aberration of our county system.

  • eric

    As maters stand, and until either a change to the regulation or court of competent jurisdiction rules otherwise, airmen will have to either swear as directed or be booted from the Force

    This may be true right this second, but I expect the AF will issue a ‘clarification’ in the next week or two, saying that that affirmation is just fine, without anything ever getting to court. I can’t imagine their legal staff supporting the no-affirmation position, and I can’t imagine their senior leadership going to the mat for it.

  • cry4turtles

    I’ve given testimony approximately 4 times and I’ve never had to say, “Som help me God.” However, each time I’ve had to agree to their statement, “Do you swear to blah blah…so help YOU God?” I felt highly compelled to agree, by the looks of the counselors, judges, and other courtroom personnel. I mean, what does one say in that situation? “Yeah I swear, but not to God.”

    Did I just hear a jail door slam shut?

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    ArtK “I’ve…gone through voi dire in many more…”

    Is that like a three-way?

     

    cry4turtles “I mean, what does one say in that situation?”

    Say “Ph’nglui mglw’nafh Cthulhu R’lyeh wgah’nagl fhtagn”.

  • abb3w

    @5, cry4turtles:

    I mean, what does one say in that situation? “Yeah I swear, but not to God.”

    I’m not a lawyer myself; but my understanding is that the easiest way would be to also object to “swearing”, in favor of affirmation. Mention the issue beforehand to whichever lawyer is calling for you to testify, so he or she can do the legwork on objecting if the form is wrong. If you’re in the 4th Circuit, US v Looper is directly applicable, as is US v Sagat in the 11th, but they’re at least advisory elsewhere.

    If it’s small claims with no lawyer, you can politely object yourself, and mention that in the Constitution affirmation without mention of God was explicitly made an option for swearing of oaths, due to the seriousness that Quakers took the prohibition in Matthew 5:34-37.

  • Randomfactor

    I’ve been sworn in twice as a witness in God-besotted Kern County, and I was not asked to say the phrase.

  • eric

    I mean, what does one say in that situation? “Yeah I swear, but not to God.”

    As abb3w says, if you’re going to be a witness just tell the lawyer calling you as witness that you want to affirm. I doubt many lawyers or judges will care.

    IANAL but the matter-of-fact way most courts run, and the number of cases they go through (in my country, it averages several/week/judge), they’ve probably seen or heard just about every objection to procedure a witness or potential jurist is going to make. Remember that while YOU might not encounter many JWs or the like, and you may only be picked for jury duty every 5 years or so, they see a crop of ~36 new jurists every week. Your average county judge in an urban area probably gets the oath/affirmation objection at least a few times every year. For jurists, there are typically a couple of points in the process before they swear you in where they’re going to ask you if you have issues/concerns. Use one of them to say you’d like to respond “I affirm” rather than “Yes” to that “…so help you God” oath. I doubt it’s going to ruffle many feathers.

    So, my non-lawyerly advice would be: just be professional about it, and I I’d like to think most courts will be professional back. (Of course if you think you’re going to be in front of a Roy Moore type, adapt your strategy accordingly.)

  • Scientismist

    I mean, what does one say in that situation?

    The first time I was a juror, about 30 years ago, they selected the jury and swore them in as a group with an oath that did not contain “so help me God.” Then they selected one alternate — me. I was sworn in alone, and suddenly the “God” line showed up.

    Well, I had been concerned about the issue, and had brought a typed statement, so I just lowered my hand and said I would like to speak to the judge in private. We retired to his chambers, and I told him that I had not been expecting that line, since the bailiff had not included it for the others. He read my note, explaining that as an atheist I could not swear to seek and accept the assistance of a God, since that would be a complete lie. The judge said “Oh. Sorry about that.” We went back into the court room, the judge spoke to the bailiff, and I was sworn in with no mention of God.

    What can you do? Just speak up. I would like to think that I played some small part in bringing us to the point where, as others have said here, the “God” phrase is routinely omitted from the oaths used in California courts today.

  • D. C. Sessions

    The last time I was on a jury, the judge’s instructions were “do you swear or affirm …” and my response was “I so affirm,” to which the judge smiled and nodded.

  • moarscienceplz

    I have seen several trials in my area (NE Ohio) and never once did anyone use the phrase “so help me God”, and the court never mentioned God either, before a witnesses testified.

    I have served on two juries in California, and I concur with this observation. So, Allen West is full of shit.

  • JPS

    Alan West needs to stop watching old Perry Mason reruns …

    I’ve been watching Perry Mason reruns once or twice a day (on the MeTV network); they were produced in the late ’50’s and early 60’s. I don’t recall ever hearing SHMG.

  • tcmc

    In only the first aired episode of Perry Mason, “The Case of the Restless Redhead,” is a witness asked to say “so help me god.” In all other episodes that show a witness being “sworn in,” the SHMG is not part of the affirmation.

  • skinnercitycyclist

    Allan West:

    I proudly and honorably took the oath of office as a commissioned officer several times and also as a Member of Congress. That’s what Americans do.

    Yeah, that’s what real Americans do, they busy themselves reciting loyalty oaths on every conceivable occasion. It’s beginning to look like Captain Black’s mess hall in here.

  • badgersdaughter

    One time I was asked to swear in court, the judge asked me in a bored voice if I solemnly swore to tell the truth, the whole truth, and nothing but the truth so help me God. I simply answered, “I so affirm”. He proceeded with business without skipping a beat.

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