Eugene Volokh posts about Michael Newdow’s latest effort to separate church and state.  Newdow last sought to eliminate “under God” from the pledge of allegiance.  He now seeks to preclude Chief Justice Roberts from telling President-elect Obama to repeat the words, “so help me God.”  Not that Obama shouldn’t say the words, but that Roberts should ask him to say them.  Newdow also seeks to stop the prayers offered during the inauguration, the invocation and benediction. Details of the lawsuit can be found at Religion Clause.

Eugene dismissed the argument against prayers during the inauguration quickly.

The lawsuit’s Establishment Clause argument about the inaugural prayers is foreclosed by Marsh v. Chambers (1983), which held that legislative prayers are generally constitutionally permissible, even to the extent they may endorse religion, because of the long tradition of such prayers dating back to the same Congress that proposed the Establishment Clause.

This sets forth two of the worst reasons for perpetuating the inclusion of prayer in government, which causes such general confusion and renders the otherwise sound arguments Newdow offers silly.  Why bother to fight this issue when any victory does nothing to provide for a rational separation all the way down the line.

The two nasty reasons are tradition and precedent.  Tradition isn’t a reason, but a historical fact connected to sentiment.  While there is no doubt that our founding fathers invoked God, the nature of religious observance was different then, and their notion of a pluralistic society was letting Catholics close to the campfire.  But they did it, and now we’re stuck with it forever.

Why?  Precedent.  One court said that separate is equal tradition  trumps reason, and that’s the whole ball of wax.  The intertwining of religion and government has perplexed many of us, who regularly ask the question of how one can rationally uphold the establishment clause while sentimentally ignoring it whenever there is some long-standing but irrational tradition of invoking religion.  We aren’t that persuaded by precedent that irrational connections are the equal of sound logic.

But Newdow’s other point about the oath of office is a very powerful one.  There is no reason why Obama, as a human being elected to public office, should not bring with him his personal belief in God.  He just shouldn’t be told to say so, and if the words come out of his mouth, they will do so because he chooses to say them.

Except, of course, tradition.