BOSTON (CN) — “Non,” the First Circuit told a French woman who wants to strike the phrase “so help me God” from the U.S. citizenship oath.
At 47 pages, the ruling stamped with Friday’s date but only published Sunday says neither discriminatory intent nor deliberate disrespect is apparent in the phrase’s use.
The appellate panel relied heavily on American Legion v. American Humanist Association — a 2019 decision from the Supreme Court — in ruling against French immigrant Olga Perrier-Bilbo. For law professor Frank Ravitch, however, the singularity of taking the oath of allegiance invites consideration of a 1992 ruling where it was found that the establishment clause prohibited the reading of religious invocations or benedictions at school graduations.
“This is literally a once in a lifetime event,” Ravitch said of the oath ceremony, “and it is possible it could be more like the graduation prayer at issue in Lee v. Weisman, especially because an immigrant seeking citizenship may be even more afraid than a graduating student to dissent if he or she fears it could impact attaining citizenship.”
The First Circuit’s analysis of the Religious Freedom Restoration Act also raised concerns for Ravitch, who is the Walter F. Stowers chair of law & religion at Michigan State University.
“The court finds no substantial burden, but there are strong arguments that this could be a substantial burden on religion for an atheist,” Ravitch said in an email. “The question then becomes whether there is a compelling interest and narrow tailoring. This case is unusual because narrow tailoring might be met because of the alternatives given to saying ‘so help me…’ but government may not have a compelling interest under RFRA for doing the oath this way.”
Olga Perrier-Bilbo has lived in Massachusetts for over a decade but still has not taken the U.S. citizenship oath because she believes that swearing to God would muddy the waters both of her sincere belief in atheism and her commitment to the United States.
U.S. Customs and Immigration Services offered Perrier-Bilbo two alternatives: to either omit the nonsecular phrase in a private ceremony, or to join other new citizens in saying the full oath, but opting to stay silent as everyone else recites the words “so help me God.” Neither option was acceptable to Perrier-Bilbo, who filed suit in 2017 and appealed that case’s dismissal to the First Circuit.
Reagan-appointed U.S. Circuit Judge Juan Torruella penned the latest defeat, which says including a religious reference in the citizenship oath is not the same as actively oppressing members of a specific religion.
“Despite her efforts, Perrier-Bilbo fails to show that, based on her religion, she was treated differently from other similarly situated prospective citizens with regards to the recital of the naturalization oath,” Torruella wrote
Perrier-Bilbo argued that the option of giving her a separate ceremony to omit the religious reference was akin to the separate-but-equal logic of the Jim Crow era. The appeals court disagreed
“Unlike those invidious segregation policies and the relegation of black people to separate facilities, designed to keep individuals of different races apart from one another, the private ceremony offered to Perrier-Bilbo was proposed as an accommodation for her religious beliefs, after she expressed that she could not recite the phrase ‘so help me God’ and did not want others around her to recite it either,” Torruella wrote. “The government is not attempting to segregate her in any way.”
While the ruling was unanimous, U.S. Circuit Judge David Barron argued in a concurring opinion that Perrier-Bilbo failed to show that either of the two options she was given dramatically infringed upon her rights.
“The plaintiff here, however, in claiming that she was pressured to complete the oath by saying, ‘so help me God,’ hardly addresses the adequacy of the option to remain silent that she was given,” said Barron, who is an Obama appointee. “She focuses her challenge in that regard almost exclusively on what she contends is the inadequacy of the private ceremony option.”
Neither of Perrier-Bilbo’s attorneys responded to an emailed request for comment, nor did a representative for Customs and Immigration Services.