Our founders wrote a secular document, with defenses against the encroachment of the majority religion, something that was one of the reasons that many of their forebears had left Europe. They knew it would be a difficult principle to maintain, but they did what they could, by writing the protections clearly.
But in the words of Benjamin Franklin, we only have a democracy, we only have the formula set out in the constitution, "if the people can "keep it."
And that's exactly what Michael Newdow is attempting to do....for us, for the future, and for those who labored in to give us a charter for The United States of America that hot summer of 1787 in Philadelphia.
Here's the AP report of the law suit. It's hard to condense into a paragraph the thousands of hours of legal research that is behind this suit, and the seriousness of it for those who care about the secular principles that our founders incorporated in the constitution.
While this suit is a broad based challenge to the recent tradition of turning a presidential inauguration into a sacred anointment by "God Almighty," rather than the elevation of a fellow human being by his peers, the immediate demand is much less grand and more accessible.
The first of the two causes of actions would not require the ending of prayer, but would simply require the Chief Justice, a man who promised to do the humble task of enforcing the constitution, acting like a baseball umpire who enforces the rules of the game, to do exactly that.
And this isn't a tough call. The words are written right in the body of the document, thirty five words that are to be said by a person who has won the majority of the electoral college votes, and by agreeing to the prescribed oath shall become president.
In the words of the suit:
CAUSES OF ACTION
COUNT 1:
THE ALTERATION OF THE PRESIDENTIAL OATH OF OFFICE
SPECIFIED IN ARTICLE II OF THE CONSTITUTION, TO BE
PERPETRATED BY DEFENDANT ROBERTS WITH NO AUTHORITY
WHATSOEVER, VIOLATES THE ESTABLISHMENT CLAUSE
Of all governmental officials, the one who most personifies the rule of law and the supremacy of the Constitution is the Chief Justice of the United States. 28 U.S.C. § 1. One might argue that he, more than anyone, has a duty to maintain the document’s purity.
The oath of office for the President of the United States is specified in the Constitution’s Article II, Section 1. In its entirety, it reads:
‘I do solemnly swear (or affirm) that I will faithfully execute the
Office of President of the United States, and will to the best of my
Ability, preserve, protect and defend the Constitution of the United
States.’’
It is to be noted that the words, “so help me God” are not included in this oath.
What follows is Newdow's argument that the story of George Washington first appending "So Help Me God" at his first inaugural is a myth. I argued strongly in an exchange of emails that this was a diversion, that even if he said it, it was not as part of the oath, but as a reply. The story of his saying these words never implied that Washington was was trying to amend the oath, by intent or by process.
But Newdow has spent years refuting this myth, and felt he had to make the argument of its falsity in this case, even though it was an aside. But the central point is that the Chief Justice has a clear duty to deliver the words of the constitution as written.
He continues:
104. In fact, it isn’t until 1881, ninety-two years after George Washington’s initial ceremony,
that the first use of the “so help me God” phrase can be verified. That occurred when Vice
President Chester A. Arthur took the oath upon hearing of President James Garfield’s death.
The phrase, (So Help Me God)if used at all during the next half century, was apparently used only intermittently until 1933, at President Franklin Roosevelt’s first inauguration. (It is known that neither President Herbert Hoover nor Chief Justice William Howard Taft used those
words at Hoover’s inauguration in 1929.40)
Since 1933, “so help me God” has been used at every public inaugural ceremony, with that unauthorized alteration interposed each time by the Chief Justice of the United States.
If President-elect Obama (as a black man fully aware of the vile effects that stem from a majority’s disregard of a minority’s rights, and as a Democrat fully aware of the efficacy his Republican predecessor’s “so help me God” oath additions) feels that the verbiage formulated by the Founders is so inadequate that he needs to interlard his oath with a purely religious phrase deemed unnecessary by the first twenty presidents, Plaintiffs have no objection at this time. The President, like all other individuals, has Free Exercise rights, which might permit such an alteration.
This suit is demanding that the Chief Justice deliver the constitutional 35 word oath of office, but is not denying the right of then President Obama from appending "So Help Me God." Perhaps, this is close to what the first president did in his inauguration.
The second count, to eliminate all prayer from the inauguration is well researched and presented, and in a better world with more truly originalist justices it would be endorsed. It is a more complex issue than the oath, and is separable from the first count, which is clear and could be followed without disrupting the planned inauguration.
What it would do is remind the billion or so people who view this historical event of exactly what the founders of this country wrote into our constitution. It will be a small step, the first in memory, to counter the creeping theocratization of our government that has become so ubiquitous that trying to reverse it is seen as inappropriate by too many of us.
This count, restoring the constitutional oath, was not in his suit that he brought to end prayer in 2004, so there is no restriction on it being brought now.
For those who doubt the sincerity, knowledge and courage of Newdow, I suggest you listen to the oral argument of his Pledge case, and how he gained the respect of each of the seven justices who he dialoged with. Scalia recused himself because of his statement that atheist are so far beyond the pale that they need not be considered in constitutional issues. Thomas, as usual said nothing, perhaps ironically agreeing that atheists were not fully worthy of constitutional protection.
Here is the 39 page complaint which is well worth reading for the history and jurisprudence of this issue.
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