An Oath to Uphold Only the Just Laws
I’m reluctant to disagree with my Bloomberg View colleague Noah Feldman, but after a bit of reflection and research, I’ve concluded that he got things slightly wrong in his recent column about Kim Davis. Davis, the Kentucky county clerk who was held in contempt for defying a federal judge's order to issue marriage licenses to same-sex couples, has argued that her religious freedom is being violated. What caught Feldman's attention was her claim that her oath of office, which ends with “so help me God,” entitles her to invoke a higher law when necessary. Feldman thinks she's mistaken. I wish she were; I fear she's not.
This column isn’t a defense of Davis. I’m a passionate supporter of a broad right to accommodation of religious conscience. But I don’t think such exemptions can apply to a public official, who after all is a monopolist. If a county clerk won’t give a couple a marriage license, it’s not as if they can go to her competitor in the office next door. So the judge was right to issue the order, and the U.S. Supreme Court was right to reject her appeal. Now that Davis is back at work, I hope she'll obey the law.
But even though the case is easy, Davis's argument about her oath of office deserves a closer look. According to her brief, “Davis understood (and understands) this oath to mean that, in upholding the federal and state constitutions and laws, she would not act in contradiction to the moral law of God, natural law, and her sincerely held religious beliefs and convictions.”
Feldman finds this claim not so much unpersuasive as wrongheaded -- a misunderstanding of the nature of the oath. Davis’s argument, he writes, “implies that obedience to divine law is somehow baked in to one’s constitutional duties and obligations.” He adds:
Whom you swear the oath by is different from what you swear to do. Officials in the U.S. definitively don’t swear to uphold God’s law. They swear to uphold the Constitution, which never mentions God at all.
With all due respect, I think this argument is historically incomplete. Like much scholarly writing today about oaths, it seeks to impose a post-modern outlook on a pre-modern practice. Viewed in this way, the oath is no more than what courts in contract cases might call a signal of an intention to be bound.
But there is much more to the history of the oath. Take the case of jurors. In a subsequent column, Feldman cites the 1797 edition of the Encyclopaedia Britannica for the proposition that invoking the name of God is simply a means for securing the truth of the oath. The actual language he quotes was borrowed by Britannica from the writings of the 18th-century theologian William Paley, who used the example to show how the overuse of oaths was making them “cheap in the minds of the people.”
A few chapters later, Paley takes up the subject of the oath of allegiance to the monarch -- an oath also taken in the name of God, and a closer approximation to an oath of office. That oath, Paley argues, does not apply when the king’s own misbehavior “makes resistance beneficial to the community” or when the commands of the sovereign “are unauthorized by law.”
For Paley, as for many others of the day, the oath of allegiance was never a promise to obey all laws. It was a promise to obey the just ones.
Our modern tendency is to treat the addition of “so help me God” to the oath as merely a proof-text, a means by which listeners can determine the sincerity of the speaker. Scholars tend to note, in passing, that the oath emerged from the idea of a “self-curse” -- that God should punish me if I’m lying. This approach, however, views the oath too narrowly.
The oath, as the linguist Helen Bromhead has argued, also signaled one’s membership in the community. An individual who was willing to swear by God to tell the truth marked herself as accepting and submitting to a variety of cultural norms. Legal scholar Christopher J.W. Allen, reminds us of a belief during the Victorian era that “the religious sanction was fundamental to the worth of any testimony because religion was fundamental to morality.” So it’s easy to understand why the same states that adopted a federal Constitution prohibiting religious tests for federal offices preserved them for state offices. Even today, a dozen state constitutions still require their officials to swear their oaths of office in God’s name.
The reason I call this idea pre-modern is that it shares a connection with the understanding of many ancient cultures, including Biblical Israel, where, as the theologian Tony W. Cartledge has shown, the vow in the name of God was not merely a call upon God for help -- it was a promise that if help was forthcoming, the person swearing the oath would do whatever God demanded in return. This is the sense of oath-taking that Davis is invoking: that in the case of a conflict between God’s law and man’s, the oath itself requires her obedience to the higher.
Davis’s argument for relying on her oath of office as justification for disregarding the law of the land is well grounded in history.
I’m not prepared to say that it’s time to prohibit public officials from taking their oaths in God’s name. I do think we have to recognize that the tradition might not mean what we think it means.
Of course, the case would be quite different were the state trying to deprive an official of her post because of her religious convictions -- as when the attorney general of Georgia some years back rescinded a job offer from a lawyer who planned to marry her same-sex partner in a religious ceremony. The federal courts wrongly rejected her religious freedom claim.
In her brief seeking a stay of the federal court’s order, Davis argues that couples to whom she refuses to grant licenses can drive to the clerk’s office in the next county to get one. But the next county’s clerk’s office is about an hour away from hers. The drive is no trivial inconvenience. It’s one thing to say that we all have to share in the costs of the accommodation of religious belief. It’s something else to say that only same-sex couples have to bear them.
It isn’t easy to translate their understanding for today’s reader. As the historian Geoffrey Hughes has put it, “people used mainly to swear by or to but now swear mostly at.”
I won’t deny that there’s a case to be made for occasional civil disobedience by government officials. But the occasion is rare, and disagreement with a court decision should almost never be reason enough.
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