The news that an atheist airman refused to sign an oath that contained the words “so help me God” last month, and was subsequently denied reenlistment, has drawn some interesting responses. Among others, Law Professor Eugene Volokh and former United States Congressman Allen West have weighed in. Their takes are so profoundly different as to provide a useful study in contrasts.

For his part, West celebrates the news with a “Hallelujah!” and calls it “good tidings”:

I know there are times when you might feel there’s no good news — especially when it comes to contending with groups like the Freedom from Religion Foundation (FFRF) or the oxymoronic Military Religious Freedom Foundation (MRFF). It does seem as though the secular humanists are winning, but sometimes there is hope.

Needless to say, this hope comes in the form of compelling non-believers to pledge to something in which they do not believe. Because, according to West,

The United States of America is based on a Judeo-Christian faith heritage and those beliefs form the fundamental moral and legal core of our country… 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?

West is “sure” that some atheists still took the oath (indeed, taking the pledge is “what Americans do”) and is quite pleased with the prospect of forcing non-believers to swear to a belief they do not hold. He mostly ignores precedents against compelling affirmations of belief from non-believers. His chief counter to this is so curious as to deserve a mention of its own:

Correct me if I am wrong, but don’t we swear court witnesses to “tell the whole truth and nothing but the truth so help me God”?

Spoiler alert: we don’t. But we’ll get back to that in a minute.

Meanwhile, in his article yesterday, Volokh tackled the same point, from a vastly different (and, dare I say, fact based?) perspective. He demonstrated that a non-theistic affirmation is indeed allowed by law:

So 10 U.S.C. § 502 expressly says that each person may swear or affirm. Likewise, 1 U.S.C. § 1 expressly says that an oath includes an affirmation. And an affirmation means precisely a pledge without reference to a supreme being. Given this context, it seems to me quite clear that “So help me God” in the statute should be read as an optional component, to be used for the great bulk of people who swear, but should be omitted for those who exercise their expressly statutorily provided option to affirm — because that’s what affirming means (omitting reference to a supreme being).

Volokh also notes that the Constitution “has a thing or two to say on such matters” — not least of all, that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Furthermore, the Constitution continually recognizes affirmation as a valid alternative to oaths — including providing an alternative to swearing the presidential Oath of Office, allowing for a president to “solemnly swear (or affirm).”

But Volokh isn’t finished there. He returns to West’s contention that witnesses must be sworn in with reference to a God — and demonstrates how utterly wrong he was on that point as well.

Witnesses routinely have the option of affirming as well as swearing; see, for instance, Fed. R. Evid. 603, or in Rep. West’s home state of Florida, Fla. Evid. Code 90.605, Before testifying, each witness shall declare that he or she will testify truthfully, by taking an oath or affirmation in substantially the following form: “Do you swear or affirm that the evidence you are about to give will be the truth, the whole truth, and nothing but the truth?”

It’s worth noting that the former congressman was informed of similar instances by several of his own readers in his comments section (indeed, there were a surprising number of atheist commenters who took umbrage with his “good tidings”).

At any rate, the vast disconnect between these two perspectives is instructive. And it seems the lawmaker could certainly stand to take a class or two in law…



