One response to this incongruity is laughter. Another appropriate response, however, is a deep cynicism about both modern establishment clause jurisprudence and those governmental officials who claim to support it. Consistency should require such officials to forbear any hint of religious legitimation for their official duties. Their inaugurations and other ceremonies should be as bereft of Bibles and prayers and clergy as they wish to make our public schools.
There are several possible reasons why elected officials do not insist on strictly secular inaugurations and public events. One cynical possibility is that public officials who participate in these ceremonies, including Presidents-elect and Supreme Court Justices, believe such ceremonies to be inconsistent with the Constitution, but continue these traditions for fear of alienating the unwashed American public. This possibility makes the unhappy suggestion that government officials are willing to violate the Constitution in the very act of swearing allegiance to it.
Less cynically, it seems likely that even strict separationist government officials seek the legitimation and acknowledgment of their authority by organized religion. If so, it is deeply inconsistent for such officials to grant themselves the right to public religious legitimation and blessing while denying them to the rest of the population, who seek them at public occasions meaningful to their own lives.
Indeed, it is far more problematic, in terms of a theory of a secular or religiously neutral government, to allow religious adornment of inaugurations than it is to permit prayers at graduation. A graduation ceremony is predominately a personal and communal rite of transition. An inauguration, by contrast, is indelibly a political event for securing the orderly transfer of power and the political allegiance of a people. Inaugural religious oaths administered upon holy scripture and accompanying prayers signal something not profoundly different from the famous coronation of the emperor Charlemagne by the Pope in Rome in a.d. 800—namely, that God and His voice in organized religion are authoritatively blessing the endowment of an individual with political office and power. Of course, Billy Graham, unlike some medieval popes, has never claimed the jurisdiction to select the civil ruler. But the role of legitimating the office, transferring power, and endowing individuals with political authority remains the same. The message is simultaneously religious and political, and represents both state endorsement of religion and religious endorsement of the state.
The religious history of oaths and inaugural prayers underscores their intertwining of religion and government. During the Reformation, Anabaptists insisted on following literally Jesus' command not to swear any oath, while Calvinists and Lutherans adhered to the traditional Roman Catholic use of religious oaths as an important expression of the religious foundations of political obligations. The Anabaptist rejection of oaths was not merely an interpretative quarrel, but was understood more deeply as a part of the Anabaptist rejection of Christian involvement in political and military affairs. Anabaptists rejected the medieval enterprise of Christendom, equating it with the evil world from which the church must be completely separate. Their refusal of religious oaths was a specific denial of the Christian nature of the political order.
Coronations of monarchs were important religious ceremonies because their religious legitimation of particular political rulers expressed Christendom's fundamental claim that the empire's (or nation's) authority and unity was ordained by God. This expression survived the Reformation; in England, the Archbishop of Canterbury crowned King George III in 1761, just as the Pope had crowned Charlemagne. When it came time to inaugurate George Washington as America's first President, this English practice formed the background.
The new nation did not want to consider its President a monarch, but it still desired a proper ceremony. Amidst the uncertainties over the proper mode of granting office, President Washington improvised by using the English coronation as a guide. He placed his hand on a Bible, swore to execute the duties of his office and defend the Constitution, and then spontaneously added words used in the English coronation service: “I swear, so help me God.” Washington then kissed the Bible, as had King George III in 1761. And so, from the very outset, American inaugurations were, in important religious respects, modeled after Christendom's coronations. America might be a republic, but it was a Christian republic, and hence a part of Christendom (though not, of course, in the medieval sense).
It is worth remembering that the practice of inaugural prayer was reinstituted, after a lapse of 144 years, by Franklin Delano Roosevelt. In the last quarter century, from the Republican Richard Nixon in 1969 to the Democratic Bill Clinton in 1993, the evangelist Billy Graham has often played a prominent role at inauguration services. Clinton's inauguration was no less religious than that of his immediate predecessors. He began the day at an early morning prayer service at an A.M.E. Church, laid his hand on the Bible as he took the oath, quoted scripture in his inaugural address, and invited Graham to deliver the invocation and benediction. The American religious-political symbols of Bible, oath, prayer, benediction, and evangelist, all of them together suggesting the theme of America as a holy, (Judeo?) Christian nation, were present.
The political usefulness of these religious trappings are the same as they have been throughout the history of Christendom. Presidents and Supreme Court Justices, like Kings and Emperors, want to be obeyed; they want the people, without resistance, to pay their taxes and obey their laws and fight their wars, even where those people supported a different leader or disagree with a particular policy. American politicians know that they need something more than secular contract theory to persuade Americans to perform these acts of political loyalty. They know that most Americans believe in God, and they want those citizens to believe that God has, in some way, legitimated or recognized or blessed their office and authority.
I suppose that Supreme Court Justice Sandra Day O'Connor might say that such use of the Bible and prayer are merely “solemnizations” bereft of religious or sectarian content. In her concurring opinion in Lynch v. Donnelly (1984), a case involving the erection of a Christmas creche on state property, she wrote:
The government's display of the creche in this particular physical setting [is] no more an endorsement of religion than such governmental “acknowledgments” of religion as legislative prayers, . . . government declaration of Thanksgiving as a public holiday, printing of “In God We Trust” on coins, and opening court sessions with “God save the United States and this honorable court.” Those government acknowledgments of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society. For that reason, and because of their history and ubiquity, those practices are not understood as conveying government approval of particular religious beliefs. It cannot fairly be understood to convey a message of government endorsement of religion.
If she really were to believe such a thing, it would evidence a remarkable capacity for self-delusion. In a country in which the vast majority of citizens pray and believe in God, it surely matters, for purposes of legitimation of power and authority, whether or not God and the Bible, the highest authorities and sources of ideals known to those citizens, are invoked to legitimate political authority. Nor is it possible for an inauguration to invoke divinity in a religiously neutral way, for the very act of naming divinity as Allah, Father, Mother, Christ, One, or Many is itself sectarian.
Indeed, the suggestion that an inauguration filled with prayers and religious oaths is nonreligious would evidence an extreme cynicism toward those who stand in front of a hundred million people and deliberately give every appearance of solemnly engaging in these religious acts. Are we to presume that these Presidents and Justices are engaged in a fraud and a sham? Does an individual lose his capacity for prayer or religious oath upon taking office? Why is it religious and sectarian when an elementary school teacher prays in front of a class room of children, but a mere nonreligious solemnization when a President stands in front of the nation and swears, on a Bible, so help him God, to carry out the office to which he has been entrusted?
I am not arguing for daily Bible reading and prayer in the public schools. I am arguing that all of the “governmental neutrality” tests employed by the Justices, based (since 1971) on the second prong of the Lemon test, wink at reality. A government which systematically and publicly seeks to buttress its political legitimacy from Christian Bibles, oaths, clergy, and prayer, in continuum with more than a millennium of political leaders within Christendom, is not acting “neutrally” among religions, or between religion and non-religion.
It is deeply unjust to use religion to legitimate your own authority, an authority which extends to commanding others to kill or risk death, and then, when it suits you, limit appeals to that source of authority from which you sought recognition and blessing. If we are going to allow religion to be used to legitimate the authority of government, we should allow religion to be a part of the process of selecting, restraining, and judging those who use that authority.
I am not arguing for the abolition of the establishment clause. However, interpretations of this clause need to be grounded in the realization that America is historically a part of Christendom, and that American government has never successfully carried out a policy of acting neutrally among religions, or between religion and non-religion. Institutional separation of church and state, religious freedom, and toleration are values that grew up in America within Christendom's fundamental religious and political commitments, and not generally in opposition to them. Recent attempts to use the establishment clause as an engine of secularity have had some effect, but such attempts rely on distortions of both the past and present, and in themselves are no more “religiously neutral” than the generalized acceptance of Christian dominance that preceded them.
Ironically, the Court's interpretations of the establishment clause have probably contributed more to religious divisiveness in America than the practices that were the subjects of the Court's cases. The Court has sent the message that it is unconstitutional for government to offend the religious sensibilities of any American, thereby creating a right not to be offended that makes being thin-skinned a civic and constitutional virtue and thus undermines the virtues necessary to social and religious harmony.
The judicial myth of governmental neutrality toward religion promises the impossible, and thus invites misunderstanding, religious division, and frustration. Ultimately, the Court needs to explain that the Constitution promises neither a Christian nor a secular America, and thus is not a prize in the continuing struggle to define the meaning of America. The contemporary meaning of America's historical foundations in Western Christendom and the Christian faith cannot be determined by nine Justices, but rather will be determined as the people express themselves politically and culturally.
In the meantime, “God save the United States and [that] honorable court.”
David M. Smolin is Professor of Law at Cumberland Law School, Samford University, and a Fellow of the Southern Center for Law and Ethics. An earlier version of this essay appeared as part of a much longer article in the June 1996 issue of Loyola of Los Angeles Law Review.