Air Force Seeks DoD Review of Oath
Update: Patrick Vaughn, general counsel for the American Family Association, wrote an article saying “The U.S. Constitution makes it clear: American atheists are not and should not be barred from serving their country through military service.”
Facing scrutiny for its letter-of-the-law requirement that Airmen enlist with “So help me God,” the Air Force has asked the DoD General Counsel to provide an official legal opinion:
The Air Force said Tuesday it was awaiting a legal opinion from the Defense Department’s top lawyer on whether an enlisted airman who’s an atheist can opt out of the phrase “so help me God” in his re-enlistment oath…
“The opinion that we’re seeking will help inform future decisions and the latitude that can be taken with the oath,” Air Force spokeswoman Rose Richeson said Tuesday. “But the Air Force has to comply with law.”
From an objective position, that does not seem to be an unreasonable course of action. The US military cannot make law; it can only follow the law. Where there may be disagreement with its position, it can certainly ask its superiors for guidance — guidance that will remove any appearance of subjectivity on its own part.
Many have already provided legal opinions that the law doesn’t say what it seems to say. One of the more compelling explanations is that of Eugene Volokh, as he cites the law and then explains it using court cases citing Black’s Law Dictionary:
Given this context, it seems to me quite clear that “So help me God” in the statute should be read as an optional component…
That’s fair, but as the Air Force has learned recently, what is “quite clear” to one person may be entirely unclear to another. It is surprisingly common to request legal written opinions on certain matters in the military to provide a commander with guidance. Those legal opinions are precisely that — opinions. For a service that has been berated for its legal opinions recently, it shouldn’t seem unreasonable that it would seek higher level direction to re-enact what some people viewed as a deviation from the law.
Volokh also takes former US Rep — and retired Army LtCol — Allen West to task for supporting the “new” Air Force policy. West said:
Service in the United States military is voluntary and its members take an oath to support and defend the United States Constitution. That being the case, to whom should an oath or a pledge be rendered? That would be my question.
To be fair, oaths have been under secularist attack, and the vitriol leveled against the US Air Force Academy last fall by critic Mikey Weinstein was part of the context of West’s outrage. USAFA eventually said it changed its cadet honor oath to make “so help me God” optional in response to Weinstein’s criticisms — failing to note it was always optional, and failing to come up with a coherent way to even deliver the oath in the future (saying the person leading the 4,000 strong cadet wing might, or might not, include the phrase).
Thus, West’s article is written as a “hallelujah” that secularists are being rebuffed in their attacks on all things religion in the US military, as he further cites the US Navy’s reversal of its removal of Bibles from Navy Lodges. But the oath isn’t an example of secularism run amok. In this case, no one is demanding the phrase be banned as an endorsement of religion, for example. They only want a person who does not ascribe to a deity to be able to deviate from the apparent requirement to swear to one.
That’s religious freedom.
Bryan Fischer of the American Family Association — who previously said Muslims shouldn’t serve in the military unless they can prove their loyalty — has taken the Air Force’s position to a further extreme, declaring atheists shouldn’t serve in the US military:
There is no place in the United States military for those who do not believe in the Creator who is the source of every single one of our fundamental human and civil rights.
Serving in the military is a privilege, not a constitutional right. And it should be reserved for those who have America’s values engraved on their hearts.
That’s an asinine position. The US Constitution protects the government from interfering or discriminating against citizens’ religious liberty. Clearly, forcing an Airman to “swear” contrary to his religious beliefs to perform public service violates that very precept.
With a few exceptions, most seem to agree that the phrase “so help me God” should be optional — though there are those on both sides of the ideological aisle debating whether the Air Force was right to adhere to this particular interpretation of the law.
It seems a foregone conclusion the Air Force will ultimately make the phrase optional (again), as it should. Obtaining an authoritative answer, and then instituting a consistent Service-wide policy, seems a reasonable course.
Also at the Air Force Times (twice) and the Business Insider, World Magazine, the Christian News Network, and the Christian Science Monitor.
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Note that requiring the “so help me God” coda doesn’t just affect atheists. There are Christian sects who interpret Matthew 5:33-37 as being a strict prohibition on the swearing of oaths, particularly in the name of God. Making this phrase obligatory would thus bar adherents of those denominations from military service. I admit this situation would be rare – most of these selfsame sects also frown on military service either because they are pacifists (e.g., Quakers) or because they do not believe in submitting themselves to strict worldly authority (e.g., Jehovah’s Witnesses), but it’s still a relevant point and the Air Force should not have a blanket policy of rejecting this subset of Christians out of hand.
The Air Force’s assertion that the law requires service members to take an oath with “so help me god” is at odds with the unanimous 1960 Supreme Court opinion in Torscaso v. Watkins that the First Amendment bars the government from excluding atheists from positions because of their non-belief in God. Consistent with that ruling, conservative Justice Scalia in 1990 in Employment Division v. Smith wrote that the government may not compel affirmation of religious beliefs.
I suspect that the recent modification of the Air Force rule requiring the oath will not survive scrutiny of the attorneys for the Air Force. The statute, 10 USC 502, under which the rule was promulgated specifically included a reference to service members being allowed to swear OR affirm. Similarly federal statutes provide that the term oath includes affirmation and the term sworn includes affirmation. 1 USC 1.
Swearing under God is not necessary for government oaths. If it was so necessary, then why is it not necessary for other branches of the military. Government institutions routinely allow individuals to affirm rather than swear under oath. This distinction is important to other groups whose beliefs do not allow swearing under oath.