Church & State Issues/Unconstitutional?

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Question
I understand that some states continue to require public officials to swear "under God" before taking office. This would seem to be in direct violation of Article VI of the U.S. Constitution (third and final paragraph). Do I have my facts wrong? How if at all can this circumstance be considered constitutional? If it's not, how is it that these requirements persist?

Answer
Hi Richard,

No public official can be required to swear using the term "under God" in order to take office.  You don't even need to go to the First Amendment for that.  Article VI itself says that "no religious Test shall ever be required as a Qualification to any Office or public Trust."  But even if Article VI did not have this qualification, the First Amendment would prohibit such a requirement too.

Officials can be obligated to take some oath or affirmation to support the government, Constitution, or the laws of the land.  But any such oath or affirmation must be altered not to reference God if the person taking it objects to such a reference.

By tradition, many officials choose to mention God in their oath or affirmation.  George Washington began this tradition when he added "so help me God" when he took his first oath of office as President.  However, if an official chooses not to reference God, that cannot be a bar to taking the office.

The reality is that most officials do not object to the term and are content to use it.  They are not required to do so, but do it anyway.  

- Mike

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Michael Troy

Expertise

I can answer any question relating to freedom of religion or the Establishment Clause, including the Religious Freedom Restoration Act (RFRA). My specialties involve religious discrimination by government in allocation of benefits, usually in the educational area. I cannot give specific legal advice on specific cases you may have.

Experience

I have participated in the litigation of a number of religious freedom/Establishment Clause cases, including Rosenberger v. Univ. of Virginia and Columbia Union College v. Clarke.

Organizations
Former Attorney with Center for Individual Rights

Publications
Washington Post
Washington Times

Education/Credentials
JD from Univ. of Michigan Law School

Awards and Honors
Truman Scholar

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