Rep. Debbie Wasserman Schultz didn't use a bible in her swearing-in photo-op either.

From The Hill, 1/5/05: Ackerman saves the day

This is a story about how Rep. Gary Ackerman (D-N.Y.) helped avert a religious crisis as new members of the House posed for photos with Speaker Dennis Hastert (R-Ill.) yesterday at a re-enactment of their swearing-in. The near-crisis occurred when Rep. Debbie Wasserman Schultz (D-Fla.), who is Jewish, asked Hastert to use a copy of the Old Testament for the re-enactment photo. Her request sent Hastert’s aides scrambling to find a copy, but they weren’t able to. Fortunately, someone pointed out that Ackerman keeps copies of the Old Testament and other Jewish prayer books in his office, where he often hosts minyanim, assemblies of 10 or more men required for Jewish community prayer. Ackerman promptly delivered a copy of the Old Testament to Hastert’s office, which convinced Wasserman Schultz that he’s a mensch and bubbala.

Prager is just plain wrong.

Prager is wrong almost beyond description. His attempt to distinguish between a religious test for office and an oath sworn on the Christian Bible (by the way, what Jew refers to the Hebrew Bible as "the Old Testament"?) is historically ludicrous. You see, the oaths on the Bible WERE the religious tests so explicitly rejected. (and I happen to know a bit about this, having spoken just last week at the Indiana ACLU on the Establishment Clause and oaths of office).

The Vermont Constitution of 1777, for example, including Section IX which, in relevant part, required each member of the house of representatives to take the oath-

I _____ do believe in one God, the Creator and Governor of the Diverse, the rewarded of the good and punisher of the wicked. And I do acknowledge the scriptures of the old and new testament to be given by divine inspiration, and own and profess the protestant religion.

That, you see, is far more than an oath- it is a religious test. Why? Because no Catholic, Jew, or other could take that oath, both because of the "protestant religion" language AND the obligation to accept the "new testament." Just making a person swear to, or on, the new testament was a religious test. You want something even more persuasive? When Vermont amended its constitution in 1786 it wrote:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Afirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

In other words, by so amending they were acknowledging that the oath itself was a "religious test."

The Constitution of Massachusetts, 1780, had an oath of office, too:

I, ___, do declare that I believe the Christian religion, and have a firm persuasion of its truth; and that I am seized and possessed, in my own right, of the property required by the constitution, as one qualification for the office or place to which I am elected.

By Prager's reasoning, this is just an oath, not a test. Of course, the act of placing your hand on the "New Testament" as an oath is as much a affirmation of its religious validity as the words themselves. And that, obviously, is the flaw in Prager's argument.

I'm going to quibble very slightly and say that a bare oath without a theological component isn't quite the same the kind of religious tests that were instituted in England after the Reformation, carried over into state constitutions, and persisted in Britain under the various Test Acts as late as 1829.

That's moot, though, because 'no religious Test' and the option to affirm rather than swear are not recent additions, to put it mildly.

Some Christian denominations prohibit swearing oaths; that's why the option to "affirm" rather than "swear" is in there: because to 18th century Americans and British, requiring an oath at all was a religious test, calibrated to exclude several varieties of Dissenters, including Quakers.