"Do you swear or affirm that you will tell the truth, so help you God?" We routinely hear court reporters and judges administer this oath to witnesses and think nothing of it. Yet, this standard oath might be inappropriate for several reasons.
Tex. R. Evid. 603 (which is identical to the Federal Rule of Evidence 603) only requires that "Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awake the witness' conscience and impress the witness' mind with the duty to do so."
"So help me God" is not a required part of the oath. In
United States v. Looper
, 419 F.2d 1405, 1407 (4th Cir.1969), the Fourth Circuit held that the trial judge erred in refusing the testimony of a defendant who would not take an oath that referred to God. Specifically, Looper had told the trial judge, "I can't [take the oath] if it has God's name in it. If you ask me if I'll tell the truth, I can say that." The Fourth Circuit concluded that any form or statement that impressed on the mind and conscious of the witness the necessity for telling the truth would suffice as an oath, citing proposed Rule 603. The opinion suggested that trial judges faced with religious objections to an oath or affirmation should "make inquiry as to what form of oath or affirmation would not offend defendant's religious beliefs but would give rise to a duty to speak the truth."
Spigarolo Ferguson v. C.I.R.
, 921 F.2d 588, 590 (5th Cir. 1991), the pro se litigant's Christian beliefs prevented her from swearing or affirming and the tax court judge refused to allow her to testify and dismissed her case. The Fifth Circuit reversed and said:
The right to free exercise of religion, guaranteed by the First Amendment to the Constitution, is one of our most protected constitutional rights. The Supreme Court has stated that "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." The protection of the free exercise clause extends to all sincere religious beliefs; courts may not evaluate religious truth. Fed.R.Evid. 603, applicable in Tax Court ... requires only that a witness "declare that [she] will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so." As evidenced in the advisory committee notes accompanying Rule 603, Congress clearly intended to minimize any intrusion on the free exercise of religion.
The rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required.
If Judge Korner had attempted to accommodate Ms. Ferguson by inquiring into her objections and considering her proposed alternative, the entire matter might have been resolved without an appeal to this court. Instead, however, Judge Korner erred not only in evaluating Ms. Ferguson's religious belief, and concluding that it did not violate any "recognizable religious scruple," but also in conditioning her right to testify and present evidence on what she perceived as a violation of that belief.
The pro se party in the Ferguson case tried to get the judge to allow her to follow the Supreme Court of Louisiana decision in
Staton v. Fought
, 486 So.2d 745 (La.1986), as an alternative to an oath or affirmation:
I, [Betty Ann Ferguson], do hereby declare that the facts I am about to give are, to the best of my knowledge and belief, accurate, correct, and complete.
According to the Pew Research Center 2014 Religious Landscape Study, about seven percent of Americans consider themselves atheist or agnostic and 23% describe their beliefs as not affiliated with any religion. An oath based on a belief in God might not comply with TRE 603 if the witness does not believe in God, since such an oath would not be "in a form calculated to awake the witness' conscience." Requiring a witness who does not believe in God to swear an oath to God would also violate the witness' constitutional rights.
Article I, section 5 of the Texas Constitution makes clear that no person can be prohibited from giving testimony or evidence because of his religious beliefs (or lack thereof):
No person shall be disqualified to give evidence in any of the Courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury.
Paradoxically, the Texas Constitution, Article XVI, Section 1, requires appointed officials, including judges, to take two oaths that conclude, "so help me God."
In re General Electric Capital Corporation
, 63 S.W.3d 568, 571 (Tex. App.-El Paso 2001, orig. proceeding) held that the "so help me God" part of the oaths for appointed officials could not be required. The opinion concluded, "...a solemn pledge may be executed by a reference to God; however, it need not. .... For these reasons, we conclude the "so help me God" ending is not an indispensable part of the oath."
The court in
Scott v. State
, 80 S.W.3d 184, 190 (Tex. App.-Waco 2002, pet. ref'd) held that the defendant's First Amendment right of religious freedom was violated by a judge who refused to let him swear as follows,"I vow to my heavenly Creator that I will tell the truth and that I will do so under any penalties that are equivalent to the penalties for perjury for those who swear or affirm oaths."
Society of Separationists, Inc. v. Herman
, 939 F.2d 1207, 1219 (5th Cir. 1991), Robin Murray-O'Hair appeared for jury duty in Austin but, as an atheist, she refused to swear an oath to tell the truth containing the phrase "so help me God." She also refused to make an affirmation to tell the truth that contained no reference to God. The trial judge held her in civil contempt. The Fifth Circuit ruled that the judge could not compel a juror to affirm to tell the truth when to do so would offend her beliefs as an atheist.
The Establishment Clause of the Constitution might also seem to be a reason for a court reporter or judge to not require an oath to include "so help me God." After all, if a school district cannot be part of a prayer at a football game, how can a government employed judge or court reporter invoke God in an oath? However, several cases have held that "so help me God" in an oath does not violate the Establishment Clause. See, e.g.,
Commonwealth v. Callahan
, 519 N.E.2d 245, 252 (Mass. 1988) (holding that a juror oath concluding with the phrase "so help me God" was a permissible governmental acknowledgment of religion) and
School Dist. v. Schempp
, 374 U.S. 203, 212-13 (1963) (referring to "So help me God" oaths as an inseparable part of our nation's history and government).
So, how should a witness be sworn properly without knowing what his or her religious beliefs are? After all, many might object if a judge first asked each witness if they believed in God before the oath was administered. Most cases suggest that the usual "so help you God"oath be used and then if the witness objects to that oath, the judge should reasonably accommodate the witness' beliefs.
The Fifth Circuit in
Society of Separationists
In holding that [the trial judge] erred, we do not mean to say that he was not courteous and thoughtful.... [T]he Constitutional guarantee of Free Exercise ... is to be watched, policed and rarely if ever trespassed. The judge's duty was to fashion statements of commitment to truth and integrity ... and to do everything that would make for absolute integrity. The [witness] must be able to articulate [his] commitment to [tell the truth and his understanding that he can be prosecuted for perjury if he does not]. The judge had a duty to fashion a statement for the prospective [witness] so that he could elucidate these concepts. This he failed to do.
We say that what the judge did was error ... Our decision should be understood not as chastisement by any means, but as ... a reminder that the Free Exercise Clause requires something more; here, a back-and-forth interaction designed to elicit positive cooperation from a protesting ... witness.
The U.S. Fourth Circuit Court of Appeals in
United States v. Looper
, 419 F.2d 1405, 1407 (4th Cir.1969) identified several informal means by which the English courts historically permitted witnesses to make their oaths and affirmations:
With the sophistication derived from England's role as a world trader, its courts have permitted Chinese to break a saucer, a Mohammedan to bow before the Koran and touch it to his head and a Parsee to tie a rope around his waist to qualify them to tell the truth.
419 F.2d at 1407 n. 4 (citing 6 Wigmore, Evidence in Trials at Common Law, § 1818 (3d ed.1940)).
The defendant in
Fagbemi v. State
, 778 S.W.2d 119, 121 (Tex. App. - Texarkana 1989, pet. ref'd) was Nigerian and was allowed to to take an oath for truthfulness on his tribal icon when he testified that he believed if he were to lie after taking such an oath, he would be utterly destroyed within seventy-seven days.
Atheists and nonbelievers are often very reluctant to admit their beliefs in public because of the pervasive prejudice most Americans have against atheists. One author recently wrote:
Every single study that has ever looked at the issue has revealed massive amounts of bigotry and prejudice against atheists in America. The most recent data shows that atheists are more distrusted and despised than any other minority and that an atheist is the least likely person that Americans would vote for in a presidential election. It's not just that atheists are hated, though, but also that atheists seem to represent everything about modernity which Americans dislike or fear.
An atheist called to testify may not feel comfortable objecting to the "so help me God" part of the oath. On the other hand, a judge probably should not just assume that a witness believes in God. One article estimated there were over 8 million Wiccans in the United States. A Wiccan might swear an oath to the Moon Goddess or the Horned God, but might balk at a general oath "So help me God." Yet, many witches for good historical reasons might hesitate to admit their beliefs in public, especially if they are a witness who wants a judge or jury to believe them.
The best practice might be for the court reporter to hand the witness a card with several oaths or affirmations and ask them to select and read the one that best "awakens his conscience" according to his beliefs and will invoke his duty to tell the truth.
Two worthwhile law review articles to read if you are interested are:
Belcher, Jonathan, "Religion-Plus-Speech: The Constitutionality of Juror Oaths and Affirmations Under the First Amendment" William & Mary Law Review, vol. 34, No. 1 (1992) and Jonassen, Frederick B., 'So Help Me?': Religious Expression and Artifacts in the Oath of Office and the Courtroom Oath, Cardozo Public Law, Policy and Ethics Journal, Vol. 12, No. 2, Spring 2014.