In 2009, Michael A. Newdow, who had previously unsuccessfully challenged the constitutionality of the words “under God” in the pledge of allegiance in Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), attempted to enjoin incoming President Barack Obama from repeating the words “so help me God” when he took his oath of office.

A U.S. District Court denied his request for a preliminary injunction, and the D.C. Circuit Court denied standing, although future Supreme Court Justice Brett Kavanaugh, who was then serving on the circuit court and who was primarily relying on the U.S. Supreme Court decision in Marsh v. Chambers, 463 U.S. 783  (1983), which permitted chaplains in state legislatures on the basis of long-standing historical practice, would have accepted the standing and would have rejected the injunction on its merits. 

Scholars have studied use of "so help me God" phrase during oath of office

Still scholars have continued to discuss the protocol surrounding these words, which are not listed within the Constitution and whether they violate the establishment clause of the First Amendment.

Much of the debate has centered on long-repeated claims, that a number of Supreme Court decisions have echoed, that George Washington had initiated the practice of adding the words “so help me God” to the president oath that the Constitution prescribed.  The best available evidence, however, suggests that reports that Washington used these words did not arise until long after he took the oath and cannot thus be reliably verified (Henriques 2019). 

There is, however, contemporary evidence that George Washington engaged in a symbolic equivalent when he kissed the Bible after taking his oath, and that this practice was contemporaneously also reported for the inaugurations of Andrew Jackson, Abraham Lincoln, Ulysses S. Grant and, at times, through the presidency of Harry S Truman (Jonassen 2012, 898).  Moreover, a number of presidents beginning with Chester A. Arthur in 1881 used the words “so help me God” as have all presidents from Dwight Eisenhower through Donald J. Trump (Jonassen 2012, 898).

In a comprehensive study of the subject, law professor Frederick B. Jonassen, of Barry University, has concluded that the practice is probably justified not only under the historical usage principle articulated in the case of Marsh v. Chambers as well as the free exercise rights of individuals choosing to add these words to the oath.  He also argues that the practice passes the three prongs of the Lemon Test and other contemporary tests that the U.S. Supreme Court has used in contemporary cases involving the establishment clause of the First Amendment.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was published on Dec. 20, 2019.

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