Stephen Losey

Air Force Times

An atheist airman who must take are-enlistment oath concluding "so help me God"or end his Air Force career would have better luck enlisting in the Army or Navy, which allow soldiers and sailors to omit the phrase.

Air Force officials have said "so help me God" is a required part of the oath, spelled out in rules that govern military re-enlistment. The Air Force is asking the Defense Department's general counsel for a legal review of the rule, and said its opinion will help inform future decisions.

The Army and Navy, which are subject to the same statute, have a different interpretation of the requirements, spokesmen for both services said Wednesday. Those services allow soldiers and sailors to choose not to say "so help me God." The Marine Corps has not yet responded to a request for comment.

And a Pentagon official said the issue is settled — and the Air Force is wrong.

"There is no legal requirement to say 'so help me God' in any federal oath or affirmation by a person taking the oath," said the official, who was not authorized to speak on the matter. "Saying 'so help me God' in any federal oath is optional at the discretion of the person taking the oath, not the person administering the oath."

The Air Force's decision to ask for a legal opinion came Tuesday, five days after the American Humanist Association announced it was representing the unnamed airman, who is stationed at Creech Air Force Base in Nevada.

The association is giving the Air Force until Sept. 19 to reverse course or face a lawsuit, said attorney Monica Miller of the AHA's Apignani Humanist Legal Center.

In an interview Wednesday with Air Force Times, Miller said she needs to start moving forward soon to ensure the situation is resolved before the airman's enlistment expires in November.

"We think the 19th is an acceptable date, because there's no reason to prolong it further," Miller said. "They're either going to do it, or they're not, and we need to know so we can get the lawsuit in" before his enlistment expires.

In a Sept. 2 letter to the inspectors general for the Air Force and Creech and to Creech officials, Miller said the airman — who wishes to remain anonymous — was denied re-enlistment Aug. 25 for refusing to take an oath that concludes with the phrase "so help me God."

Miller said that is unconstitutional and violates the Constitution's prohibition against requiring religious tests to hold public office. The airman should be given the choice to re-enlist by swearing a secular oath, she said, and threatened a lawsuit if the Air Force does not change course. Miller said she has not yet received any response from the Air Force.

The Air Force used to allow airmen to omit the phrase "so help me God" if they so chose. But an Oct. 30, 2013, update to Air Force Instruction 36-2606, which spells out the active-duty oath of enlistment, dropped that option. Since that quiet update to the AFI, airmen have been required to swear an oath to a deity when they enlist or re-enlist.

The Air Force said the change was made to bring its oath in line with the statutory requirement under Title 10 USC 502. The Air Force said it cannot change its AFI to make "so help me God" optional unless Congress changes the statute mandating the oath, said spokeswoman Rose Richeson.

In a Sept. 10 interview in his Pentagon office, Chief Master Sergeant of the Air Force James Cody — the service's top enlisted man — said that while the Air Force is bound to follow the statute it sees as requiring airmen to say "so help me God," he hopes the Pentagon's general counsel will help find a way forward.

"I don't know this airman, but I can certainly understand his concern here," Cody said. "We absolutely, in the Air Force, respect every individual airman's right to believe what they believe. We're going to treat them with respect and dignity, regardless of what that is. It's an individual choice. There isn't a service-specific concern here, other than the fact that we have to comply with the law. If we get relief from that, we'll be happy to allow the airman to sign the appropriate paperwork that does not put him in conflict with his beliefs."

Cody said that the Air Force's general counsel reviewed the previous AFI that allowed airmen to omit "so help me God," and concluded that the Air Force was not in compliance with the statute.

"We're certainly more than willing to work with this airman," Cody said. "We are certainly more than willing to have him re-enlist. We don't hold any religious beliefs or nonbeliefs in any way, shape or form in context of that decision. We're not trying to not support this airman. We just have to make sure we're in compliance with the law."