Constitutional Law

No, You Don’t Have to Swear an Oath to Hold Public Office

This happened—

—even though this had previously happened:

U.S. Const., Art. VI (requiring oath “or Affirmation,” and precluding any religious-test requirement)

—and then this shortly afterward:

U.S. Const., amend. I

Later, this happened:

We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’

* * *

This Maryland religious test for public office unconstitutionally invades the appellant’s freedom of belief and religion and therefore cannot be enforced against him.

Torcaso v. Watkins, 367 U.S. 488 (1961) (striking down state requirement that officeholders profess “belief in the existence of God”)

Also this:

Respondent, an atheist, had stricken through the portion of the oath on the application [to become a notary public] which read, “So help me God.”

* * *

We affirm the circuit court’s holding that South Carolina Constitution art. VI, § 2 and art. XVII, § 4 violate the First Amendment and the Religious Test Clause of the United States Constitution.

Silverman v. Campbell, 486 S.E.2d 1 (S.C. 1997) (striking down state requirements similar to Maryland’s)

More recently, this happened:

Keith Ellison made history Thursday, becoming the first Muslim member of Congress and punctuating the occasion by taking a ceremonial oath with a Quran once owned by Thomas Jefferson.

Frederic J. Frommer, “Ellison Uses Jefferson’s Quran,” Washington Post (Jan. 5, 2007).

This explanation later happened:

While the general basis of the controversy is real, editorials … erred in maintaining that Ellison would be sworn into Congress by taking an oath with his hand upon the Quran. Actually, no Bibles or other religious texts are used during the swearing-in ceremony for the House of Representatives—incoming House members simply stand in front of the speaker’s podium en masse, raise their right hands, and recite an oath in which they swear to uphold the Constitution…. Accordingly, although Ellison was not actually sworn in with the Quran, after the official swearing-in ceremony he posed for photographs [with it].

“Congressional Swearing-In on the Quran,” Snopes.com (last visited Dec. 13, 2017).

And, most recently, this happened:

* * *

There are plenty of reasons in addition to religious bigotry that Roy Moore shouldn’t be allowed within a mile of any mall public office, his utter contempt for the rule of law being another really good one. I know nothing about the spokesman who appeared on CNN other than what you can see in the clip above. And while he may be a bigot, too, it at least seems like he actually had absolutely no idea—it just had never even occurred to him—that swearing an oath on the Christian Bible might not actually be required as a test for public service in America. Or, even, that requiring someone to do that might be illegal, God forbid. But yep, it sure is. Everywhere in America, in fact. As mentioned in the clip, you can swear on the Bible if you want to, and that’s likely also a protected right. But you can’t be required to in order to serve. See generally Allan W. Vestal, “Regarding Oaths of Office,” 37 Pace L. Rev. 292 (Fall 2016).

At least three presidents have sworn an affirmation instead of an oath, and on something other than a Bible, and like Keith Ellison they were of course allowed to serve anyway. Trump chose to swear on a Bible, and that’s fine too, but he could have been sworn in with his hand on his own book or the latest issue of Playboy, and for better or worse he’d still be president.

I’m guessing someone had to talk him out of both options.