A serving airman was refused re-enlistment because he crossed out the words “So help me God” in the oath he was told to take. (This is based on reporting by Air Force Times – not an especially radical journal – and the story quotes an Air Force spokeswoman, so I’m treating it as fact rather than mere allegation.)

According to the AF official, reciting the oath in full is required by statute. But until last October, the implementing regulations included a conscience clause; that somehow got omitted when the regulations were re-issued.

Of course the statute without the conscience clause is transparently unconstitutional; Article VI provides that “No religious test shall ever be required as a qualification to any office or public trust under the United States.” (It also allows officials to make an “affirmation” in place of an “oath.”) As the Supreme Court said back in 1946, “The test oath is abhorrent to our tradition.” Its use to bar non-Anglicans from public life (and the professions) in England was one of the grievances that spurred the Puritan/Quaker/Catholic exodus to the American colonies.

The aggrieved party in this case appears to be an atheist, but there are also pious Christians (e.g., Quakers) and Jews who scruple at invoking the Name, or indeed at swearing at all (thus the “affirmation” provision in Article VI). As a famous rabbi once said (Matt. 5:33-37):

Ye have heard that it hath been said by them of old time, Thou shalt not forswear thyself, but shalt perform unto the Lord thine oaths. But I say unto you, Swear not at all; neither by heaven; for it is God’s throne, nor by the earth; for it is his footstool: neither by Jerusalem; for it is the city of the great King. Neither shalt thou swear by thy head, because thou canst not make one hair white or black. But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil.”

No doubt the airman will win his case, though if he does he will, equally undoubtedly, return to service a marked man with limited career prospects.

But if I were the President, or the Secretary of Defense, or the Secretary of the Air Force, or a member of one of the Armed Services Committees, I wouldn’t be satisfied with having the victim reinstated and the regulation re-issued in its previous, Constitutionally compliant, form. I’d worry about the bureaucratic culture within the Air Force that led to a deliberate decision as recently as last year to impose a burden on the scrupulous.

The Air Force Academy is in Colorado Springs, a hotbed of Religious Right activism, and the Christian Dominionist tendencies that have become problematic throughout the armed services seem to be especially strong in the Air Force. Cleaning out this problem may well require a small river. But the job will never be completed if it’s never started.

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.