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Oct 24 2013

To Swear or Not to Swear: The Founders’ Original Intent for Military Oaths

Six years ago, when I first started working as a researcher for the Military Religious Freedom Foundation (MRFF), I assumed that the work I’d been doing debunking lies about American history and my research for my new “day job” at MRFF would be two completely separate things — an assumption that couldn’t have been more wrong. This really shouldn’t have surprised me given that what led to me getting my job at MRFF in the first place was an article I wrote about the JROTC core curriculum American history book containing an essay on the “myth” of separation of church and state from none other than Christian nationalist pseudo-historian David Barton.

I began working for MRFF in May 2007, and it was only a few months later that I realized just how widespread Barton’s brand of historical revisionism had become in the military. As the Fourth of July was approaching that year, people started sending me patriotic Independence Day articles from various military base newspapers, all of them pushing a very familiar theme — getting back to America’s Christian heritage. Naturally, most of these articles were chock full of the same Christian nationalist American history lies found in Barton’s books and all over the web on the right-wing Christian websites. As I soon found out, the articles in the base newspapers were just the tip of the iceberg. A slew of fundamentalist Christian military ministries, as well as performers and speakers appearing at events on military bases, were also promoting this revisionist history to our service members. Even David Barton himself was speaking on military bases, and his so-called “history” books were actually in the libraries of our military’s colleges and service academies — including the libraries at West Point and the Air Force Academy. Clearly, my job at MRFF and my work debunking historical lies were not going to be two separate things.

The latest collision between my job at MRFF and my work debunking the Christian nationalist version of American history is happening right now in the Air Force — a battle over whether or not Air Force officers can be forced to say “So help me God” when taking their commissioning oath. What does this have to do with revisionist history? Well, we’ll get to that in a minute. But first, here’s what’s going on.

Recently, at Maxwell Air Force Base in Alabama, the religious oath issue came up when Air Force officer candidate Jonathan Bise threatened to sue if forced to say “so help me God” when taking his commissioning oath at his graduation ceremony. That case was handled by the American Humanist Association’s Appignani Humanist Legal Center. Jonathan Bise — not to mention the “no religious test” clause of the Constitution — prevailed. Bise was not required to say “so help me God” at his graduation ceremony. He was also able to sign a new written oath minus the religious words to replace the religious oath that he had previously been coerced into signing.

It seemed like things were settled when Maj. Stewart L. Roundtree wrote to Bise’s attorneys: “Our previous legal advisors were mistaken in advising us that it was required. Our current legal advisors made me aware and we will ensure it reaches all corners of our program.” So, these new legal advisors were apparently aware of that little thing in the Constitution about no religious test being required for any public office. Problem solved, right? Wrong.

The case at Maxwell Air Force Base was quickly followed by another case of constitutional ignorance (or obstinance), this one being handled by MRFF.

On October 2, an email was sent to cadets at the Air Force Academy informing them that Jonathan Bise’s being allowed to omit “So help me God” from his oath at Maxwell Air Force Base, did not mean anything. The email informed the cadets that “The words in the Oath of Office MUST be said in order for your Commissioning to be legal.” Here’s the entire email, which was forwarded to MRFF on October 3:

From: ———- MSgt USAF USAFA CW/CS21

Sent: Wednesday, October 02, 2013 10:45 AM

To: CS21_C14_ALL; CS21_C15_All; CS21_C16_All; CS21_C17_ALL

Cc: ———- Maj USAF USAFA USAFA CG3/CS21; ———- Maj USAF USAFA CW/CS27

Subject: INFO: Change to Oath of Office (Optional “So Help Me, God.”

Soon-to-be-Lieutenants,

Bottom Line: Don’t expect to have any words changed in the near future.

You may remember seeing guidance regarding another Commissioning Source out of Maxwell AFB and an Airman challenging the last sentence in the Officer’s Oath of Office (“So Help Me, God.”). The Airman was allowed to omit the this statement. I engaged Cadet Personnel earlier this semester regarding this possible change for those who would prefer to omit this verbiage as well (both verbally and on the Form 103 — your Commissioning documentation — where the Oath is written and your signature is required). They had received no specific guidance. I also questioned the Chaplain Corps who also had received no specific guidance. Today, I spoke with the JAG and have the following information update:

The Air Force has since rescinded the guidance of omission. The Oath of Office is governed by Congressional Oversight. The words in the Oath of Office MUST be said in order for your Commissioning to be legal. Legislation is addressing the possibility of change however, due to other business priorities, who knows when this will be looked at again. If you are passionate about changing this legislation I encourage you to contact your Congressional Representatives and let them know how you feel. If you’d like to discuss this topic further I’m always here.

~MSgt ———-

Blackjacks 21 AMT

 

Mikey Weinstein, the founder and president of MRFF, immediately contacted the Pentagon about this obvious violation of the Constitution’s “no religious test” clause and received the following reply a few hours later:

From: “———- Maj Gen USAF HQ USAF AF/JA” < ———[email protected]>

Date: October 3, 2013 at 4:10:01 PM MDT

To: Mikey Weinstein < ———[email protected]>

Subject: RE: EXTERNAL: Change to Oath of Office (Optional “So Help Me, God.”

Mr. Weinstein,

Thank you for the email and for raising this issue to our attention.

A few weeks ago, USAFA/JA asked for a legal opinion from AF/JAA (our Administrative Law Directorate) regarding the oath requirement. Our folks in AF/JAA are currently researching the statutory requirements set forth in 5 U.S.C. 3331. Once they’ve concluded their research, they will draft a legal opinion that will be provided to all organizations responsible for Air Force officer accession programs (USAFA, ROTC, OTS).

I’ll be happy to notify you when we’ve issued our opinion. Please let me know if you have questions.

VR,

———-

Major General, USAF

Deputy Judge Advocate General

 

About half an hour after that, a second email was sent to the cadets at the Air Force Academy to “clarify” the previous email they received:

From: ———- Maj USAF USAFA USAFA CG3/CS21

Sent: Thursday, October 03, 2013 4:46 PM

To: CS21_C14_ALL; CS21_C15_All; CS21_C16_All; CS21_C17_ALL

Cc: ———- Maj USAF USAFA CW/CS27; ———- MSgt USAF

USAFA CW/CS21

Subject: RE: INFO: Change to Oath of Office (Optional “So Help Me, God.”

Signed By:

Blackjacks,

I would like to clarify what MSgt ———- sent out yesterday regarding the Oath of Office.

It turns out that AF/JA has been working to put together a legal opinion on this issue because of a question raised by our SJA last April and a recent case that arose out of Air University regarding the permissibility of

deleting the words “so help me God” in the officer commissioning oath on the commissioning form. That opinion has not been completed and is considering the questions whether the written oath, which is set out in statute, may be modified in any way and whether the spoken oath at a ceremony must repeat those words verbatim. AF/JA is not prepared at this moment to definitively answer either question.

I did talk to our SJA who pointed out that whether or not you repeat your commissioning oath verbatim at your ceremony has no legal consequence. However, your signature on the AF Form 133 is legally binding and JA cannot advise you to alter the oath (even though others have done so in the past without consequence).

Our SJA recommends we standby for updates from higher headquarters as they become available.

Please see me if you have any questions regarding this issue.

Maj ———-

CS‐21 Blackjacks Air Officer Commanding

 

Yes, that was the Air Force’s answer. They’re actually having a hard time coming to a definite, consistent decision about this. Why? Because the oath created by an act of Congress contains the words “So help me God.” Apparently, the fact that the Constitution, with its “no religious test” clause, trumps any act of Congress doesn’t seem to be enough for them to be “prepared at this moment to definitively answer.” How could this be?

Well, this is where some revisionist history comes in. There are actually people arguing that the founders saw no conflict between the Constitution and forcing someone to take a religious oath.

Judicial Watch, the right-wing watchdog group that has taken up the cause of forcing everyone in the Air Force to swear an oath to God — regardless of their clear constitutional right not to — claims that the proponents of forced religious oaths in the military have history on their side, saying:

“While this oath has undergone modifications over the centuries, the phrase ‘So help me God’ dates all the way back to 1776. So there can be no question regarding whether or not our Founding Fathers believed there was any conflict among the reference to ‘God’ and our founding principles and the Constitution.”

 

No question? Really? Then how come the military oath written by the very first Congress in 1789 left off the “So help me God” line? That’s right, the very first Congress, which included a good number of the founders who actually framed the Constitution, did not make “So help me God” part of the military oath! These words were not part of any military oath until 1862, when the oath for officers needed to be changed because of the Civil War. And it wasn’t until a full century after that that the words were added to the enlisted oath.

Yes, it is true that one of the oaths used during the Revolutionary War, the oath taken by officers, did include the words. At that time, military officers were required to take the same oath taken by all officers of the government, military or civilian. This oath, renouncing all allegiance to King George and acknowledging the independence of the United States, did end with “So help me God.” The first oath written specifically for the military, however, the oath first written in 1775 and revised in 1776 and taken by all enlisted soldiers, did not include the words.

In September 1789, the first military oath under the new Constitution was approved. This oath, which was the same for both officers and enlisted, was part of “An Act to recognize and adapt to the Constitution of the United States the establishment of the Troops raised under the Resolves of the United States in Congress Assembled,” and did not include the words “So help me God.”

Here is the original oath written by the Congress of 1789. This oath was actually two oaths, both of which were required for both officers and enlisted:

“I, A.B., do solemnly swear or affirm (as the case may be) that I will support the constitution of the United States.”

“I, A.B., do solemnly swear or affirm (as the case may be) to bear true allegiance to the United States of America, and to serve them honestly and faithfully, against all their enemies or opposers whatsoever, and to observe and obey the orders of the President of the United States of America, and the orders of the officers appointed over me.”

 

It wasn’t until long after the days of the founders — over seven decades after these original oaths were written — that “So help me God” was added to any military oath. The change came in 1862, when the oath for military officers was rewritten to include a statement that the officer had never borne arms against the United States or aided the Confederacy. This new Civil War era oath was the first military oath to end with the words “So help me God.” The oath for enlisted members of the military, however, was not changed at this time. That oath remained “godless” for another century.

The enlisted oath was not changed until 1950. The reason for the change at that time was the establishment of the Uniform Code of Military Justice (UCMJ). The purpose of the UCMJ, passed by Congress in May 1950, was to make the justice system in the military “uniform” across all of the branches of the military. Upon passage of the UCMJ, the line in the enlisted oath saying that a service member would obey orders “according to the articles of war” had to be changed to obeying orders “according to regulations and the Uniform Code of Military Justice.” But “So help me God” was still not added to the oath when this change was made. That wouldn’t happen until 1962, when Congress passed an act to make the enlisted oath more consistent with the officer oath, which, of course, did include the “so help me God” line.

So, why don’t we just get back to the intent of the founders, which is what groups like Judicial Watch are always claiming they want to do? The founders who wrote the first military oath under the Constitution in 1789 did not include the words “So help me God,” so their intent was obviously that these words not be part of the oath. Judicial Watch’s claim of having history on their side does not hold water. Maybe that will help the Air Force answer the questions that they are “not prepared at this moment to definitively answer.”

11 comments

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  1. 1
    Randomfactor

    Wondering if there was any equivalent oath prior to 1776 which would’ve required allegiance to the Crown. Seems to me that ought to be given due consideration by the Air Force…for historical reasons, of course.

  2. 2
    Ellie

    So, just curious, what would Christians like me do, who take the admonishment of Jesus to heart (let your “yes” be yes and your “no” be no. Anything else comes from evil)? Not join the military, I guess.

  3. 3
    OldEd

    two things come to mind:

    (1) Article VI, clause 4 (“…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”) governs.

    (2) This might be a case that would go directly to the Supreme Court. And I can not, for the life of me, see why any court could possibly rule in favor of keeping the current wording, or any variant of it.

  4. 4
    OldEd

    ….I forgot to add: those in the military law biz who think differently have no business being in the law biz…

  5. 5
    M can help you with that.

    So, just curious, what would Christians like me do, who take the admonishment of Jesus to heart (let your “yes” be yes and your “no” be no. Anything else comes from evil)?

    That has been a popular enough concern over the years (from Quakers and others in the Christian category, as well as plenty of non-Christians, who are uncomfortable swearing oaths for religious and/or philosophical reasons) that “or affirm” has been included. Not just in military oaths, but in formal recognitions of reponsibility, etc. in the civilian world — as in courts, oaths(/affirmations) of office, etc.

  6. 6
    jamesramsey

    or for example this

    “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.”

    I’m pretty sure that is constitutional.

  7. 7
    Erp

    I’m not sure what the oath was under the British but at least for officers in the Royal service there were various measures to prevent non-Church of England (and in particular Catholics) from joining (these were among the religious tests that the US Constitution explicitly banned). Military minded Catholics often went abroad to serve in an allied or remote (so as to avoid fighting their king) Catholic monarch’s armies (such as those of Maria Theresa of Austria) and sometime rose to high rank (e.g,. Richard d’Alton who rose to field-marshal and was made a Count of the Holy Roman Empire).

  8. 8
    Francisco Bacopa

    So fascinating that the earliest oaths did not include “So help me God”. No need to go back to Article Six as original intent is plain as day in early oaths.

  9. 9
    OldEd

    of course it’s constitutional…

    What isn’t constitutional is adding “so help me God” to the end of it…

  10. 10
    robnyny

    Jesus fucking tit. The Constitution pretty much settles this. The President is allowed to affirm or swear, and there is not mention of gods or goddesses, Fuck gods, guck foddesses, get them out of my life.

  11. 11
    Marcus Ranum

    Christians bearing false witness. I’m shocked. After all, they can’t be good christians because of that love your neighbor don’t kill thing.

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