You've all heard by now the curfuffle involved with the inauguration and the Oath of Office. It was taken twice by the President just to make sure because Chief Justice John Roberts flub. When he retook the oath, President Obama (its going to take a while to get sick of typing that), started off by saying: "we're going to do it very slowly." This is good, this is an amusing historical anecdote.
Here's what wasn't really talked about; part of the oath stated on January 20th, may have, in fact, been illegal. On December 31, 2008 American Attorney and Emergency Medical Physician (is there anything this guy can't do?) Michael Newdow along with 17 other people and 10 seperate groups filed an injunction against Chief Justice Roberts. The contention of the suit was that it was illegal for him to add the words "so help me God" at the end of the Oath. At no time did they claim it was illegal for President Obama to confirm the Oath by adding those four words at the end, only that the one administering the Oath could not require it.
Both Article Two, Section One, Clause Eight and the 22nd Amendment make reference to the President assuming the duties of the office. For purposes of this discussion I'll only be reviewing Article Two, since Amendment 22 only talks about timing of assuming office. This section requires this specifically:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:
"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."
Of note is the possibility of Affirmation in place of Oath. An Oath is typically considered to have religious impact. Since 1695 British law has included the ability to affirm rather than swear, primarily as a concern over Quakers who refused to swear due to religious objections. This is also used by atheists who wish to avoid the same religious implications.
So, this has not been difinitively ruled on yet. The Circuit Court stopped the injunction from proceeding, in part because US District Court Judge Reggie Walton in an oral ruling believed he did not have the authority to stop the Chief Justice from prompting the words, or to keep Obama from saying them. There will be an appeal.
So, what do you think?
Just as a side note, Franklin Pierce, in possibly the best thing he ever did while in office, affirmed rather than swore.