Should Non-Believers Fight the Inaugural 'So Help Me God'?

Battling these instances of ceremonial deism may hurt the case against truly theocratic gestures


Reuters/Mark Wallheiser

The Supreme Court has, not surprisingly, declined to reinstate a lawsuit challenging the constitutionality of adding the phrase "so help me God" to the presidential oath of office and including prayers in the inaugural ceremony. The suit, Newdow v Roberts, brought by Michael Newdow, the American Humanist Association's legal center, and a long list of non-theist organizations and individuals, was dismissed for lack of standing by the D.C. Court of Appeals. The plaintiffs never did secure a hearing on the merits of their claim. They would have lost on the merits, but their argument is worth examining anyway. It exemplifies what advocates of official religiosity have powerfully derided as an "offended observer" claim.

Citing the unique importance of inaugurations -- "the grandest ceremonies in our national existence" -- plaintiffs assert that they "have a right to view their government in action without being forced to confront official endorsements of religious dogma with which they disagree ... Prayers that declare there is a God exclude Atheistic Americans ... making them feel like 'outsiders' due to their personal religious beliefs." (Never mind that plaintiff's argument is based on their lack of religious beliefs.) They claim to have been injured by "being personally compelled," as the price of viewing the inauguration, "to endure government sponsored, clergy led prayer to a (Christian) God," and "to witness the Chief Justice, without any authority, alter the presidential oath ... so that it includes the purely religious phrase, 'so help me God.'" Some non-theists "have felt compelled" not to view the inauguration in order to protect themselves and their children from its religious rituals.

I'd draw the line at agreeing to tolerate publicly funded nativity scenes, Ten Commandment displays, or official sectarian prayers at football games, graduations, and school-board meetings, among other practices.

Strictly, constitutionally speaking, I agree with the plaintiffs that official pleas or shows of obeisance to a Deity violate prohibitions on establishing religion. But I consider the inaugural violations minimal and tolerable. Maybe I'm just resigned to them, but I'm grateful not to be burdened by the sensibilities that make my co-irreligionists feel oppressed by some ceremonial God-talk. Thanks to my insensitivity, their recitations of injuries (about government coercion and the necessity of "enduring" official prayers in order to view the inauguration or avoiding the inauguration to avoid enduring the prayers) sound a bit melodramatic to me.

This question of whether occasional instances of ceremonial deism inflict cognizable injuries on non-believers is not just part of the substantive constitutional challenge in Newdow v Roberts. It's the core standing question raised by the "offended observer" doctrine in establishment clause challenges to official religious symbols or practices. By attacking offended-observer standing, opponents of separating church and state reduce pleas to curb majoritarian religious establishment in the interest of minority rights into complaints about political correctness. It's a promising strategy. Even I might agree that trivial instances of ceremonial deism, like robotic references to God, are relatively innocuous (and arguably degrade religious belief nearly as much as they stigmatize atheists). The trouble is that, in some cases, plaintiffs are being denied standing as "offended observers" to challenge official deism that isn't merely ceremonial.

Imagine a continuum between ceremonial deism and theocracy. "In God We Trust" on dollar bills clearly falls on the insignificant, ceremonial side, while sectarian prayers at a public, governmental meeting belong on the theocratic side, as courts sometimes agree. In 2006, the Fifth Circuit Court of Appeals granted an injunction against Louisiana's Tangipahoa school board, which opens its public meetings with a prayer offered by someone chosen by the board. "The prayers often include references to 'Jesus' and 'Jesus Christ,'" according to Americans United. "Indeed, the School Board, by a vote of 9-0, rejected a proposal to limit the prayers to a 'brief non-sectarian, non-proselytizing invocation.'"

A three-judge panel of the Fifth Circuit enjoined this intentionally sectarian practice that the school board had affirmatively declined to correct. But the full court disagreed, without reaching the merits. In a divided ruling, it denied plaintiffs standing to challenge the prayers, finding no evidence in the record that they had attended school board meetings at which the prayers were offered. The dissent disagreed on the facts, asserting that plaintiff's presence at board meetings had been conceded.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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