(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….
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.
2. But of course the statute isn’t standing alone; it’s enacted pursuant to the United States Constitution, which has a thing or two to say on such matters.
A. First, the Religious Test Clause — “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” — might well cover this. As I understand it, being an enlisted man is not an “Office,” but I would think it’s a “public Trust.” And the forbidden “religious Test[s]” have long included oaths that contained religious assertions, assertions that members of some religions could not make. (Indeed such test oaths were the quintessential religious tests.) The existence of God is one such assertion that the federal government cannot demand as a qualification for a public trust.
B. Beyond this, the First Amendment more broadly bars the government from excluding atheists from positions because of their atheism, as the Court unanimously held in Torcaso v. Watkins (1961). (For a recent conservative endorsement of that position, see Justice Scalia’s opinion in Employment Division v. Smith (1990), which says, “The government may not compel affirmation of religious belief, see Torcaso v. Watkins.”) What is true for notaries — the job category involved in Torcaso — must also be true for members of the armed forces. (While many constitutional rights are significantly constrained once one joins the military, the Court has never suggested that this is one; moreover, the Religious Test Clause makes that especially clear, since at the Framing military positions were obviously on the Framers’ minds as among the most important positions within the federal government.)
C. Moreover, the Constitution itself always provides that affirmations are always adequate substitute to the oaths that it requires. “When [the Senate is] sitting for [the] Purpose [of trying an impeachment], they shall be on Oath or Affirmation.” “Before [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation: — ‘I do solemnly swear (or affirm) that ….'” (President Franklin Pierce took an affirmation of office rather than an oath of office.) “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” “[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation.”
To be sure, these provisions were for the benefit of Quakers and other groups that oppose oaths for religious reasons, not for the benefit of atheists. But they are not limited to such groups; instead, they represent the view that affirmations are equivalent to oaths, and that what may be said with a “So help me God” may be said without.
Thus, even if a statutory scheme expressly required an oath, with no affirmation as an alternative, I think it would be unconstitutional. But here the statute specifically provides for affirmation; at most, it’s ambiguous, in also including “so help me God” as part of the oath. For reasons given in part 1 above, that inclusion shouldn’t be seen, even as a simple matter of statutory interpretation, as precluding a no-God affirmation. But the constitutional considerations make it even more clear that any ambiguity should be read in favor of allowing affirmation.
3. Turning specifically to correcting Rep. West (as he himself asked): Witnesses routinely have the option of affirming as well as swearing; see, for instance, Fed. R. Evid. 603, or in Rep. West’s home state of Florida, Fla. Evid. Code 90.605,
Before testifying, each witness shall declare that he or she will testify truthfully, by taking an oath or affirmation in substantially the following form: “Do you swear or affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth?”
Likewise, the Rules for Court Martials provide (thanks to James Woodruff for the pointer), “‘Oath’ includes ‘affirmation,'” and explains, “An affirmation is the same as an oath, except in an affirmation the words ‘so help you God’ are omitted.”
Indeed, “That’s what Americans do” — as long as there has been an America, we have allowed people to affirm without reference to God, and treated such affirmations as equivalent to oaths for legal purposes.
Thanks to Arne Langsetmo for the pointer.
UPDATE: The Fourteenth Amendment, as Prof. Seth Barrett Tillman reminded me, mentions only an oath and not an affirmation, in saying, “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” That’s not an oath requirement, but a special penalty on those who have betrayed their oath; still, I expect that this would have been understood as likewise applying to those who affirmed their loyalty to the United States, and then rebelled against it.