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.