In this case, you claim to be standing up for religious freedom. What you are actually standing up for is a brief prayer recited in a pro forma manner as part of day-long celebration to mark the instillation of a secular ruler of an officially secular nation. You are standing up for the coupling of religion and state in a highly symbolic and ritualized manner. Is this a real prayer with a real religious message or just a by-rote exercise that is included because everyone expects it to be?
-- Rev. Barry W. Lynn
Michael Newdow has failed in his attempt at stopping CJ Roberts from adding "so help me God" to the "oath of office"* next Tuesday as well as the inclusion of clergy in the inauguration at the invitation of a governmental body. As a recent NY Post opinion piece noted, one need not be a "frightened atheist" to support Newdow, at least as a policy matter. The sectarian mixture of church and policy is shown only most blatantly in the Rev. Warren issue, one not saved somehow by use of a gay minister in a less important event earlier on.
Though judges will avoid it like the plague, he is also right as a constitutional one, at least on principle. Since constitutional law is also a matter of pragmatism and practice, this is not the end of things. Engel v. Vitale and other cases noted in passing that they did not deal "with the fact that there are many manifestations in our public life of belief in God." The cases generally involved schoolchildren or public sponsored religiously themed holiday displays.
One involved use of clergy at a state legislative body. More to point, but as Newdow notes here, not quite the same thing. A body's own proceedings is not akin to a national inauguration; the matter of children alone suggests a core difference. Also, not only did "so help me God" very well might not have a similar deep historical backing as such clergy, "[n]ot until January 20, 1937, was a prayer offered as an official part of the American ceremony of inauguration." Citations to "tradition" is overall a dubious enterprise, it a complex and ever developing thing. Something those who claim to honor it sometimes ignore.
Newdow here notes the "extraordinary" fact that three justices of the Supreme Court, including the then Chief Justice, expressly argued that the First Amendment can be limited to the "God of monotheism." Justice Kennedy separated himself from this part of the dissent, including it's [offensive] allusion to 9/11. On this matter, at least, the text of the Constitution as such didn't matter. The text is of interest to the current litigation, in part, the "oath or affirmation" set forth in Art. II.
Obama can say "so help me God," if he likes, but the Chief Justice cannot add to the constitutional instituted words. The specific words added are sectarian, and leads to both establishment and free exercise problems, while also being statutory problematic under the Religious Freedom Restoration Act. Relatedly, it violates due process (liberty/equality) and public policy. Finally, the invitation of clergy is a governmentally sponsored (e.g., set up by a Presidential Inaugural Committee authorized by Congress) religious exercise ("the use of clergy to espouse the glory of God").
The mixture of church and state here is relatively minor though it is of the inch deep, mile-wide variety -- it is a rather important minor event. All the same, as shown in the Rev. Warren case, it is not free from problems. We take for granted something millions find not only ridiculous but downright offensive, including some who fully believe in the deity being honored. An event allegedly for us all, not a personal event for one V.I.P., should not do this. As the Supreme Court majority noted in the previously cited case:
We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual.
Adding a reference to God (especially when "swear" by itself implies God) and selective invitation of clergy is not really neutral. We can keep a certain perspective and still think that.
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* Lest we forget:
Meanwhile, about Mr. Obama: while it’s probably in his short-term political interests to forgive and forget, next week he’s going to swear to “preserve, protect, and defend the Constitution of the United States.” That’s not a conditional oath to be honored only when it’s convenient.
Well, in theory ...