Legal Commentary

Michael Newdow has filed a law suit challenging that part of the oath of office to be administered at the presidential inauguration that contains the words "so help me God."

Of course, he will lose. Even if he is found to have standing, this falls into the category of cases that I can be properly dismissed with nothing more than a shrug, grimace and "Dude."

But if one gets past its inveterate silliness, it's hard to deny that the case has doctrinal legs. Either under the Lemon test of Justice O'Connor's endorsement test, it is hardly frivolous to suggest that government communication that acknowledges the existence of a God and the fact that this God can help us might advance religion or endorse it in a way that makes nonadherents feel like disfavored members of the community. While a court might (actually would) dismiss such an argument by invoking the troubling notion of ceremonial deism, there is no reason why this must be so. 

My own view, expressed here and further developed as it pertains to government speech in a forthcoming piece, is that the injury that Newdow seeks to prevent, while certainly real (if not as substantial as is often claimed), cannot be prevented in any type of evenhanded manner. Government inevitably will send messages disfavoring certain religious presuppositions and the common distinction - that these are not theological messages - does not comport with the actual way in which dissenters experience these messages or what theologians and sociologists tell us about religious formation.

While I think that there are non coercive messages that can raise establishment clause concerns, a mere invocation suggesting that the government endorses the existence of a monotheistic God who is somehow active in human affairs is safely on the right side of the line.