NOTICE: This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

OLIVER, et al.

v.

STATE TAX COMMISSION, et al.

Opinion
Supreme Court of Missouri

Case Style: Robert E. Oliver, et al., Appellants, v. State Tax Commission of
Missouri, et al., Respondents.

Case Number: SC82412

Handdown Date: 02/13/2001

Appeal From: Circuit Court of Cole County, Hon. Thomas J. Brown III

Counsel for Appellant: Kenneth M. Chackes and Gail A. Wechsler

Counsel for Respondent: Gary L. Gardner and Huyen T. Pham

Opinion Summary:

Robert E. Oliver, an atheist residing in Christian County, objects to a
statutorily required tax form for listing personal property, prescribed in
section 137.155.1, that contains "So help me God." He and the Freedom from
Religion Foundation sought a declaratory judgment. In upholding the
constitutionality of the statute, the court denied Oliver's request for a
declaratory judgment.
AFFIRMED AS MODIFIED.
Court en banc holds: Because the statute allows Oliver the option to "affirm"
rather than to swear -- and, if he wishes, to cross off the references to God --
the statute is constitutional, and it does not require Oliver to acknowledge the
existence of, or belief in, a deity.
The reasons that cause rejection of the notion that the oath's words are an
establishment of religion also cause rejection of the argument that it impinges
on Oliver's freedom to exercise his religious beliefs. The guiding principle is
that no one can be required by the government to acknowledge the existence of,
or belief in, a deity. The Court hesitates to label the phrase "So help me God"
as a ceremonial deism. Just as Oliver and the FRF find the phrase offensive
because of its religiosity, some religious adherents believe an oath requires
God's name. Though the government may not require a belief in God, and the
institutions are secular, the name of God has always been in public life,
including solemnizing oaths. At most, the phrase reminds of the occasion's
solemnity.
From Missouri's first constitution through sections quoted, there has been
section 5's reference to the right to worship God as well as the freedom not to
believe in God. Section 137.155.1 is a reference to God but not a requirement
that one express or hold a belief in God.
The Missouri Constitution deals with separation of church and state with greater
particularity than the United States Constitution. State activities and
religious beliefs will occasionally intersect, and references to God are in many
government activities. Rather than being able to cleanse state institutions of
any religious suggestion or content, or to purge any incidental support that
religious adherents might receive on a nondiscriminatory basis, the best that
can be achieved in this case's context is the state's strict neutrality as to
those who express a belief in God and those who do not. The resolution reached
here achieves that neutrality, and the reference to God in the statute is
permissible.
There is no equal protection violation because the state is free to choose
different forms of regulation in different classifications of counties, so long
as there is no underlying discrimination against particular persons or gourds
that lacks a rational basis. Both those counties affected by the statute and
others allow for non-religious attestations. There is no requirement that a
taxpayer proclaim his or her religious beliefs.
The trial court correctly upheld the statute's constitutionality. But Oliver is
entitled to a declaratory judgment that he is free, under section 137.155 and
article I, section 5, of the Missouri Constitution, to affirm rather than to
swear his required property list and to cross off "So help me God," if he so
chooses.

Citation:

Opinion Author: Michael A. Wolff, Judge

Opinion Vote: AFFIRMED AS MODIFIED. Price, C.J., Limbaugh, White, Holstein and
Benton, JJ., concur.

Opinion:

Introduction

Robert E. Oliver, an atheist residing in Christian County, objects to a
statutorily required form that contains the words, "So help me God."
The issue is whether Oliver's constitutional rights are violated by the phrase
"So help me God" in the form of the oath or affirmation, prescribed in section
137.155.1,(FN1) for the required list of a taxpayer's real and tangible personal
property. Section 137.155.1 allows the taxpayer either to swear or affirm the
truth of the tax filing.(FN2) By allowing the taxpayer to "affirm" instead of
swear, the law acknowledges the taxpayer's freedom of religious belief,
consistent with article I, section 5, of the Missouri Constitution. The
taxpayer, when opting to affirm, is free to delete the words that refer to God
that may be inconsistent with his beliefs. Section 137.155.2 makes it a
misdemeanor to refuse "to make oath or affirmation."(FN3) Thus, it cannot be
read to require a reference to God. Because the statute allows Oliver the option
to "affirm" rather than to swear -- and, if he wishes, to cross off the
references to God -- the statute is constitutional, and it does not require
Oliver to acknowledge the existence of, or belief in, a deity.
This controversy came to court because governmental authorities were
insufficiently clear that the law respects Oliver's beliefs. In upholding the
constitutionality of the statute, the trial court denied Oliver's prayer for
declaratory relief. In affirming the trial court's decision as to the
constitutionality of the statute, a clear statement is made as to Oliver's right
under Missouri law to make an affirmation rather than swearing an oath, and to
delete the reference to God if it offends his beliefs. Because he is entitled to
a limited declaratory judgment to this effect, the trial court's judgment is
modified and such declaratory relief is granted. Rule 84.14. As modified, the
trial court's judgment upholding the constitutionality of section 137.155 is
affirmed.
Because this case involves the validity of a statute, this Court has exclusive
appellate jurisdiction. Mo. Const. art. V, sec. 3.
Factual Background
Oliver first noticed, in about January 1998, that his personal property tax
form, which is prescribed by section 137.155, contains the sentence, "So help me
God." Because this conflicted with his own beliefs, Oliver refused to sign it.
Instead he wrote and signed his own affirmation -- under "penalty of perjury" --
and attached it to the personal property tax form.(FN4) Oliver then personally
delivered the tax form, which included his own statement, to the Christian
County assessor's office in January 1998. The assessor's office initially
refused to accept Oliver's 1998 property tax list and referred him to the state
tax commission. After Oliver contacted the state tax commission, a
representative of the commission told the assessor's office to accept Oliver's
form. Oliver resubmitted his property tax list, and the assessor accepted it.
After Oliver's submission of his 1998 property tax list, counsel for the state
tax commission informed Oliver that the commission had issued a memorandum to
all assessors in second, third, and fourth class counties stating that,
beginning in the 1999 tax year, the commission would require the oath, as it
appears in section 137.155.1, to be included on all property list forms
submitted by counties to which the law applies. Because section 137.155.2
provides for criminal prosecution for anyone who refuses to make the required
certification, Oliver asked the state tax commission whether he would be
prosecuted for refusing to sign the property tax form containing the reference
to God. Oliver said a tax commission representative told him that decision
belonged to local prosecutors. Oliver then asked candidates for Christian County
prosecutor whether, if elected, they would prosecute him for refusing to sign
the property tax form with the reference to God. None of the candidates took a
position on the issue.
In 1999, Oliver submitted his property tax form but again refused to sign it.
This time, however, Oliver did not include his own affirmation. The Christian
County assessor's office accepted Oliver's form, apparently without incident.
Oliver was not prosecuted for refusing to make the certification to his list,
and the statute of limitations for such a violation has now passed.(FN5)
Oliver and the forthrightly named Freedom from Religion Foundation(FN6) brought
this action seeking declaratory and injunctive relief, which included in it a
request for injunction against Oliver's prosecution and a declaration that
section 137.155 is unconstitutional under federal and state constitutions. His
claims under the First Amendment to the United States Constitution arise under
42 U.S.C. sec. 1983.
While Oliver currently has no need of an injunction, his obligation to file his
list of taxable property is annual. Thus, there is a live controversy between
Oliver and the state taxing authorities over this issue that is appropriate for
declaratory relief pursuant to Rule 87.01.
The First Amendment and "So help me God"
Oliver claims that including the phrase "So help me God" in the tax forms
violates the establishment clause and the free exercise clause of the First
Amendment to the United States Constitution, as well as the separation of church
and state provisions of the Missouri Constitution. Oliver also claims the
statute denies him equal protection of the law. These claims are addressed in
order.
The oath in judicial proceedings came to western civilization from ancient
Greece and has become part of our legal tradition with the English common
law.(FN7) From earliest times, an oath was a pledge that invoked a deity, and
breaking one's oath had super-natural or otherworldly consequences.(FN8) To the
Greeks, the oath served three functions:
First, as a solemn promise or declaration to tell the truth; second, as an
appeal to a god or gods who would guarantee the promise; and third, as a
"religious sanction" in the nature of a threat of punishment if the oath
taker committed perjury.(FN9)

At common law, the oath taker was deemed to be taking an oath to the Christian
God.(FN10) With its religious significance, the oath was the centerpiece of an
early common law proceeding known as "wager of law": an accused would take a
solemn oath as to his innocence and then produce a number of oath-takers,
usually 12, to swear that his oath was clean. Theodore F. Plucknett, A Concise
History of the Common Law 115-16 (5th ed., Little Brown & Co. 1956).
The modern dictionary defines oath to include reference to a deity: "a solemn
usu. formal calling upon God or a god to witness to the truth of what one says
or to witness to the fact that one sincerely intends to do what one says . . .
." Webster's Third new International Dictionary 1554 (3d ed. 1976).
When George Washington took the first oath of office as president in 1789, he
recited the words prescribed in article II, section 1, of the United States
Constitution(FN11) and then added these words, which are not found in the
Constitution, "I swear, so help me God."(FN12) President Washington's words
showed a belief in God and a prayer for His help. The first President's example
has been followed by his successors.(FN13) In addition to the oath of our first
president and all of his successors, the phrase "So help me God," and similar
references to the Almighty, have been a part of our courtroom oaths, our laws,
and other public rituals. See generally Zorach v. Clauson, 343 U.S. 306, 312-13
(1952); School Dist. of Abington Township v. Schempp, 374 U.S. 203, 214
(1963).(FN14)
The First Amendment, which has been made applicable to the states by
incorporation into the Fourteenth Amendment,(FN15) provides that "Congress shall
make no law respecting an establishment of religion, or prohibiting the free
exercise thereof . . . ." One might inquire whether the phrase prescribed by
this statute constitutes an establishment of religion, that is, the prescription
of religion by the state. Separately, one also might inquire whether the
prescribed phrase infringes on the free exercise of religion, that is, the right
to believe and profess whatever religious doctrine one desires.(FN16) In the
case of this oath, the two clauses invite similar analyses. The reasons that
cause rejection of the notion that the oath's words are an establishment of
religion also cause rejection of the argument that the Missouri statute impinges
on Oliver's freedom to exercise his religious beliefs.
Rather than review the entirety of First Amendment law, we consider the cases
most closely applicable to this oath.
The United States Supreme Court has never squarely ruled whether the words "So
help me God," as used in section 137.155.1 or similar context, offend the
constitution. The guiding principle is that no one can be required by the
government to acknowledge the existence of, or belief in, a deity. Torcaso v.
Watkins, 367 U.S. 488, 495 (1961).
Zorach v. Clauson implied in dicta that the use of the phrase "so help me God"
in courtroom oaths does not infringe upon the First Amendment. 343 U.S. at 313.
The United States Supreme Court has also previously considered in dicta the
national motto ("In God We Trust") and the Pledge of Allegiance (with the words
"under God" added in 1954), and it "characteriz[ed] them as consistent with the
proposition that government may not communicate an endorsement of religious
belief." Allegheny v. American Civil Liberties Union, 492 U.S. 573, 602-03
(1989); see also Lynch v. Donnelly, 465 U.S. 668, 692 (1984) (O'Connor, J.,
concurring).
The important distinction observed by section 137.155.1 is between an "oath" and
an "affirmation." An affirmation, according to Black's Law Dictionary (7th ed.
1999), is "A pledge equivalent to an oath but without reference to a supreme
being or to 'swearing.'" With this distinction established, what remains, then,
is whether the statute's invitation to swear to God is constitutionally
permissible.
The phrase "So help me God" in the oath required of admittees to the Alabama Bar
was struck down in Nicholson v. Board of Commissioners of the Alabama State Bar
Ass'n, 338 F. Supp. 48 (M.D. Ala. 1972). That federal court ruling followed an
outright refusal of the Alabama Supreme Court to allow Nicholson to practice law
unless he took the entire oath including the reference to God. Nicholson would
be helpful only if the Court agrees with the memorandum issued by our state's
tax commission that took a similar unyielding position. However, every word of
this oath, including the reference to God, is not required by law.
Other cases have dealt with similar challenges. United States v. Oliver, 363
F.2d 15 (7th Cir. 1966), held that the words "solemnly swear" and "So help me
God" in the grand jurors' oaths do not amount to a requirement or an expression
of a belief in God. Id. at 19. Doe v. Louisiana Supreme Court, 1992 WL373566, *5
(E.D. La. 1992), rejected a challenge to the phrase "In the year of our Lord" on
a law license and notarial commission. The court upheld the use of these phrases
as "ceremonial deisms," which the court said "should not be understood as
conveying governmental approval of a particular religious belief." Id. at *6.
The state here urges us to adopt the ceremonial deism rationale. But we hesitate
to label the phrase "So help me God" as a ceremonial deism.(FN17) Just as
plaintiff Oliver and the Freedom from Religion Foundation find the use of "So
Help me God" offensive because of its religiosity, some religious adherents just
as fervently believe that an oath is not an oath unless it invokes the name of
God. The latter view has support from the dictionary and from history.(FN18)
Though the government may not require a belief in God, and our institutions are
secular, the name of God has always been in our public life, including the
solemnization of oaths. At most, the invocation of the name of God in section
137.155.1 is a reminder of the solemnity of the occasion, which each person can
interpret in accordance with his or her beliefs. It is indeed an invitation to
express a belief in God. But because the option of affirmation is offered, it is
equally an invitation not to express such a belief.
The First Amendment requires our laws to be neutral as to religion. Section
137.155 allows a person to "affirm" rather than to "swear." The statute does not
require the invocation of God's name, and if Oliver and others of similar
beliefs wish to do so, they may delete the reference.
The Missouri Constitution
Oliver and the Freedom from Religion Foundation argue that the Missouri
Constitution, in article I, sections 5 to 7, has a greater wall separating
church and state and that, whatever the outcome under the First Amendment, the
Missouri Constitution makes the reference to God unconstitutional. Oliver and
the Freedom from Religion Foundation seem to read our constitution as being
hostile to religion. But by text, history, and case law, it is not.
The Missouri Constitution provisions cited by the parties are as follows:
Section 5. Religious freedom--liberty of conscience and belief--limitations.
That all men have a natural and indefeasible right to worship Almighty God
according to the dictates of their own consciences; that no human authority
can control or interfere with the rights of conscience; that no person
shall, on account of his religious persuasion or belief, be rendered
ineligible to any public office or trust or profit in this state, be
disqualified from testifying or serving as a juror, or be molested in his
person or estate; but this section shall not be construed to excuse acts of
licentiousness, nor to justify practices inconsistent with the good order,
peace or safety of the state, or with the rights of others.

Section 6. Practice and support of religion not compulsory--contracts
therefor enforceable. That no person can be compelled to erect, support or
attend any place or system of worship, or to maintain or support any priest,
minister, preacher or teacher of any sect, church, creed or denomination of
religion; but if any person shall voluntarily make a contract for any such
object, he shall be held to the performance of the same.

Section 7. Public aid for religious purposes--preferences and
discriminations on religious grounds. That no money shall ever be taken from
the public treasury, directly or indirectly, in aid of any church, sect or
denomination of religion, or in aid of any priest, preacher, minister or
teacher thereof, as such; and that no preference shall be given to nor any
discrimination made against any church, sect or creed of religion, or any
form of religious faith or worship.(FN19)

From the state's first constitution of 1820 through the present sections quoted
above, there has been the reference of section 5 to the "natural and
indefeasible right to worship Almighty God according to the dictates" of one's
conscience. This passage certainly reflects the historical fact that the
majority of those who wrote and adopted our constitution felt free to express
their own belief in Almighty God, which by text is a reference at least to the
deity of monotheistic religions and historically to the Christian or
Judeo-Christian deity. Those who wrote and adopted our state's constitution
expressed their belief in God, as well, in the preamble to each version of the
Missouri Constitution. The present preamble to our constitution reads: "We the
people of Missouri, with profound reverence for the Supreme Ruler of the
Universe, and grateful for His goodness, do establish this constitution for the
better government of the state." Mo. Const. Preamble (1945).
But the Missouri Constitution, in article I, section 5, encompasses, as well,
the freedom not to believe in God. So, in a manner that is similar to the
statute at issue in this case, section 137.155.1, there is a reference to God
but not a requirement that one express or hold a belief in God. This is
consistent with the specific protection in article I, section 5, of the Missouri
Constitution that "no person shall, on account of his religious persuasion or
belief, . . . be disqualified from testifying . . . ." Because the filing of the
taxpayer's property list under section 137.155 is to be signed under oath or
affirmation, it is an act of testifying. Thus the statute's alternative of an
affirmation is required under article I, section 5.
It is true, as the above sections make clear, that the Missouri Constitution
deals with separation of church and state with greater particularity than the
United States Constitution. See, e.g., Gibson v. Brewer, 952 S.W.2d 239, 246
(Mo. banc 1997). But our constitution cannot be read as being hostile to any
particular religion or to religion in general, just as our laws ought not to be
read as hostile to nonbelievers.
One point of difference in particularity with the United States Constitution is
the focus on prohibiting state resources to the promotion of religion, which was
added in the Constitution of 1875.(FN20) Specifically, Oliver refers to the
first clause of article I, section 7, "That no money shall ever be taken from
the public treasury, directly or indirectly, in aid of any church, sect or
denomination of religion . . . ." Oliver's argument is that the reference to a
belief in God in the prescribed oath, in the promulgation of the form by the
local and state taxing authorities, is a use of state resources in aid of a
specific religious belief.
Public resources are expended in the taxing activity. Though it is said that the
law does not bother with trifles,(FN21) in the area of religious beliefs the
contentions made by the parties are taken seriously.(FN22) The statutory oath
certainly offers the acknowledgement of a specific religious belief. But the
statute is neither a requirement nor an exhortation to such belief.
The relationship of the Missouri constitutional provisions to religious freedom
and religious discrimination was explored in Widmar v. Vincent, 454 U.S. 263
(1981), which may provide First Amendment guidance to interpreting the Missouri
Constitution. Widmar involved a regulation of the University of Missouri-Kansas
City that denied access to public facilities at a state university for a
religious group that wished to conduct meetings, which included religious
worship and religious teaching. In support of the university's regulation, the
state cited a "compelling interest in complying with the applicable provisions
of the Missouri Constitution" quoted above. Id. The Supreme Court found it
"unnecessary . . . to decide whether, under the Supremacy Clause, a state
interest, derived from its own constitution could ever outweigh free speech
interest protected by the First Amendment." The Court went on to hold that the
university's regulation violated the principle that such regulation must be
"content-neutral." Id. at 275-76.
In Widmar there unquestionably was the use of state facilities by a religious
organization, which might violate a literal reading of the first clause of
article I, section 7, of the Missouri Constitution. But the overriding
requirement of the federal constitution is that the religious organization not
be discriminated against on the basis of the content of its activities,(FN23)
and in this case the Missouri Constitution is consistent with this principle.
State activities and religious beliefs will occasionally intersect, and
references to God are found in many of our governmental activities. Rather than
being able to cleanse our institutions of any religious suggestion or content,
or to purge any incidental support that religious adherents might receive on a
nondiscriminatory basis, the best that can be achieved in the context of this
case is strict neutrality of the state as to those who express a belief in God
and those who do not. The resolution reached here achieves that neutrality, and
the reference to God in the statute is permissible.
The Equal Protection Argument
Oliver and the Freedom from Religion Foundation also argue that section 137.155
violates the equal protection clauses of the United States and Missouri
constitutions. U.S. Const. amend. XIV; Mo. Const. art. I, sec. 2. They argue
that section 137.155 imposes on Oliver and other residents of second through
fourth class counties a requirement not imposed on residents of first class
counties whose property tax certifications do not refer to God. See section
137.360.(FN24)
There is no equal protection violation here because the state is free to choose
different forms of regulation in different classifications of counties, so long
as there is no underlying discrimination against particular persons or groups
that lacks a rational basis. McGowan v. Maryland, 366 U.S. 420, 427 (1961). The
equal protection guarantee is not violated provided that all persons within the
territorial reach of a specific statute are equally affected by the law; "it
matters not that those outside the territorial reach of the law are free to
behave differently." Reeder v. Kansas City Bd. of Police Comm'rs, 796 F.2d 1050,
1053 (8th Cir. 1986).
Both section 137.155 and section 137.360 allow for non-religious attestations,
an "affirmation," as in section 137.155, or a "certification," as in section
137.360. There is no substantive difference between these two terms.
However, Oliver asserts that he and other nonbelievers are still being treated
differently because they would have to identify themselves as "nontheist" in
order to obtain any accommodation, a requirement not necessary for first class
county residents.(FN25)
There is no requirement that a taxpayer proclaim that he or she is a
"nontheist," an atheist, or that he or she simply does not believe it is
appropriate to the person's beliefs to swear before civil authorities. As the
statute allows a taxpayer to "swear" or "affirm," the taxpayer's rationale for
crossing out the reference to God is none of the state's business. Moreover, a
person could sign the form as an affirmation and simply ignore, without
deleting, the references to "swear" and to "So Help me God." In Oliver's case,
however, he clearly has made it known that he is an atheist, which is certainly
his right to proclaim. And it is, further, his right to delete the references to
God when he signs the form. In any event, when a taxpayer opts to affirm, the
words "So help me God" are surplus.
Conclusion
The trial court correctly upheld the constitutionality of section 137.155.
Oliver, however, is entitled to a declaratory judgment that he is free, under
section 137.155 and article I, section 5, of the Missouri Constitution, to
affirm rather than to swear his required property list and to cross off "So help
me God," if he so chooses. Rule 84.14 authorizes entry of an appropriate
judgment. The trial court judgment is modified to declare that Oliver is free to
delete the reference to God contained in the form provided by section 137.155
and to affirm rather than to swear to the required property list. As modified by
the declaratory relief that is granted herein under Missouri law, the trial
court's judgment is affirmed.
Footnotes:

FN1. All references are to RSMo 1994, unless otherwise indicated.

FN2. Section 137.155.1 provides:

1. The oath to be signed and affirmed or sworn to by each person making a
list of property required by this chapter is as follows:

I, ............, do solemnly swear, or affirm, that the foregoing list
contains a true and correct statement of all the real property and tangible
personal property, made taxable by the laws of the state of Missouri, which
I owned or which I had under my charge or management on the first day of
January, 19.... I further solemnly swear, or affirm, that I have not sent or
taken, or caused to be sent or taken, any property out of this state to
avoid taxation. So help me God. [Emphasis added.]

FN3. Section 137.155.2 provides:

2. Any person who refuses to make oath or affirmation to his list, when
required so to do by the assessor or his deputy, shall, upon conviction, be
deemed guilty of a misdemeanor and no property shall be exempt from
executions issued on judgments in prosecutions under this section.

FN4. Oliver added the following handwritten statement, which he signed:

It is my belief that requiring someone to take a religious oath violates the
principal [sic] of separation of Church and State in the first ammendment
[sic] to the constitution. I therefore cannot sign the oath on the form sent
me.
In lieu of this I submit the following statement[:]
I do solemnly swear under penalty of perjury that the list submitted
contains a true and accurate statement of all tangible personal property
made taxable by the State of Missouri which I had under my charge or
management on the 1st day of January 1998. I further swear that I have not
sent or taken any property out of the country to avoid taxation.

FN5. The statute of limitations for a misdemeanor is one year. Section 556.036.

FN6. We will deal only with Oliver's claim. The same relief is sought for the
foundation. We are unable to ascertain from the record whether any individuals
represented by the foundation, other than Oliver, residing in second through
fourth class counties in Missouri, object to the oath form.

FN7. Jonathan Belcher, Note, Religion-Plus Speech: The Constitutionality of
Juror Oaths and Affirmations Under the First Amendment, 34 Wm. & Mary L. Rev.
287, 291 (1992).

FN8. The Greek goddess Styx was the goddess of the river of death in the
underworld. The gods swore their oaths beside the river Styx; violation of the
oath would result either in the loss of one's immortality or being forced by
Zeus to drink of the foul river and lose one's voice for nine years. Ryan
Tuccinardi, Styx, The Encyclopedia Mythica, available at
http://www.pantheon.org/mythica/articles/s/styx.html; Michael Dawson, Styx
(River) The Encyclopedia Mythica, available at
http://www.pantheon.org/mythica/articles/s/styx_river.html.

FN9. See Belcher, supra note 7, at 291, and authorities cited therein. Belcher
says that the word "oath" was an appeal to a Greek god, "Oath." The dictionary
cites ancient Germanic or Celtic sources for the word "oath." Webster's Third
New International Dictionary 1554 (3d ed. 1976).

FN10. Belcher, supra note 7, at 292. Both the old and new testaments make
numerous references to an "oath." See generally Illustrated Dictionary &
Concordance of the Bible 742-43 (Geoffrey Wigoder et al. eds., 1986).

FN11. The President's oath, which is found in the last paragraph of article II,
section 1, states: "I do solemnly swear (or affirm) that I will faithfully
execute the office of President of the United States, and will, to the best of
my ability, preserve, protect and defend the Constitution of the United States."

FN12. Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism,
96 Colum. L. Rev. 2083, 2110 (1996) (citing Martin J. Medhurst, "God Bless the
President": The Rhetoric of Inaugural Prayer 61 (1980) (unpublished Ph.D.
dissertation, Pennsylvania State University)).

FN13. Epstein, supra note 12, at 2111.

FN14. See also Leonard W. Levy, The Establishment Clause: Religion and the First
Amendment, 153-54 (2d ed. rev., University of North Carolina Press 1994). Levy
notes that the Supreme Court has avoided decisions on whether the establishment
clause is offended by witnesses in court swearing on the bible "So help me God,"
Presidential proclamations that invoke the name of God, the opening of the
Supreme Court sessions, which asks that "God Save the United States and this
Honorable Court," currency that carries the motto "In God we Trust," and the
pledge of allegiance to "one nation under God." The Supreme Court, Levy notes,
"has had the good judgment to decline deciding cases that question whether such
practices violate the establishment clause. If that question has to be decided,
those practices should be held unconstitutional as a matter of principle,
although the rule de minimis non curat lex (the law does not bother with
trifles) might justify a more practical judgment; the Court might hold that
custom has so trivialized and secularized these practices that they do not
violate the establishment clause. However, the Court has enough cunning to avoid
rendering judgments in such cases. Principle, public opinion, and historical
custom conspire to dictate a prudent abstention."

FN15. See Cantwell v. Connecticut, 310 U.S. 296 (1940).

FN16. See, e.g., Employment Division v. Smith, 494 U.S. 872, 876-77 (1990).

FN17. There is an extensive discussion of the concept of "ceremonial deism" in
Stephen B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, supra
note 12, 96 Colum. L. Rev. 2083.

FN18. See the Webster's Dictionary definition quoted in the text, above, and
cited in note 9, and Belcher, supra note 7, at 289-94. There are some states
that, in the 19th century, forbade a person from being a witness in a trial, or
otherwise to take an oath, unless he or she professed a belief in God. See,
e.g., State v. Washington, 22 So. 841, 842 (La. 1897).

FN19. Oliver also relies on article IX, section 8 of the Missouri Constitution,
which contains the following language in the article devoted to public
education:

Prohibition of public aid for religious purposes and institutions. Neither
the general assembly, nor any county, city, town, township, school district
or other municipal corporation, shall ever make an appropriation or pay from
any public fund whatever, anything in aid of any religious creed, church or
sectarian purpose, or to help to support or sustain any private or public
school, academy, seminary, college, university, or other institution of
learning controlled by any religious creed, church or sectarian denomination
whatever; nor shall any grant or donation of personal property or real
estate ever be made by the state, or any county, city, town, or other
municipal corporation, for any religious creed, church, or sectarian purpose
whatever.

Although the above-quoted section does not limit itself to education, it is in
the article of the constitution concerning public education; moreover, to the
extent that the above-quoted language covers areas other than education, it is
redundant to the language of article I section 7, quoted in the text. Thus,
article IX, section 8, quoted above, does not appear to add anything to support
Oliver's claim.

FN20. For historical context, see Steven B. Green, The Blaine Amendment
Reconsidered, 36 Am. J. Legal Hist. 38, 43 (1992).

FN21. Cf. Levy, supra note 14.

FN22. See, e.g., Wooley v. Maynard, 430 U.S. 705 (1977) (where the Court took
seriously the plaintiff's objection to the display of "Live Free or Die" on his
state license plate).

FN23. The federal district court in American Civil Liberties Union v. City of
Florissant, 17 F. Supp. 2d 1068 (E.D. Mo. 1998), relied in part upon the
Missouri Constitution in enjoining the city's religious display of a creche at
the Florissant Civic Center. The court of appeals reversed, holding that the
city's Christmas display did not violate the First Amendment's establishment
clause. The court declined to construe the state's constitution as forbidding
the display and remanded the case to the district court with the suggestion that
the matter be left to the Missouri courts to resolve. American Civil Liberties
Union v. City of Florissant, 186 F.3d 1095, 1098-99 (8th Cir. 1999).

FN24. Section 137.360 is entitled "Form of Oath" but does not contain an oath,
but rather a "certificate" to be signed by the resident of the first class
county making a list of property. It is as follows:

I, ......, do hereby certify that the forgoing list contains a true and
correct statement of all the real property and tangible personal property
made taxable by the state of Missouri, which I owned or which I had under my
charge or management on the first day of January, 19.... I further certify
that I have not sent or taken or caused to be sent or taken any property out
of this state to avoid taxation.

FN25. It is not clear that residents of first class counties are entirely free
of being required to take an oath. Section 137.150 authorizes assessors and
others to be "empowered and authorized to administer any oath relating to the
assessment of property required by this chapter . . . ." This section might
authorize an assessor in a first class county, if the assessor is not satisfied
with the certificate that is filed, to require an oath. Any such oath would
include an affirmation alternative, as does section 137.155.