Stupid Question ™

Jan. 21, 1999

By John Ruch

© 1999

 

Q: With separation of church and state being such a big legal issue, why are witnesses still sworn in with a Bible in courtrooms?

—Dan Geiser

 

 

A: The First Amendment to the Constitution is supposed to protect religion and government from each other by forbidding laws that promote a religion or hinder its private worship.

            However, the US Supreme Court has a little junk drawer called “ceremonial deism” in which it keeps religious laws it likes and protects them from constitutional banishment. These include Congressional prayers, “In God We Trust” on money and the federal holiday of Christmas, along with the practice of swearing in witnesses with a Bible and an oath that ends: “so help me God.”

            Why are these things constitutional while, say, school prayer isn’t? The court says they’re more custom than religion and are too minor to really threaten religious belief. As Steven Epstein pointed out in the December 1996 “Columbia Law Review,” this sophistry has led to increasingly contradictory rulings on such church-state matters as courthouse nativity displays.

            Over the past 15 years, court opinions have developed general principles of ceremonial deism. To qualify, a practice must be: 1) nonsectarian; 2) voluntary; 3) presented in a manner unlikely to indoctrinate its audience; 4) deeply rooted in social custom.

            While the court has never specifically ruled on Bible swearing, it has noted the practice fits these requirements.

            It’s certainly traditional. Bible swearing dates back to old England, where only Christians could testify in court—a rule enforced by making witnesses swear before God and kiss the Bible.

            In 1848, the South Carolina Supreme Court noted that Bible swearing was one way in which “we daily acknowledge Christianity.” As late as 1939, five states and the District of Columbia still excluded testimony of those who didn’t believe in God.

            The Bible is still used in some Carolina and Philadelphia courts and in many oaths of office. However, it’s falling out of favor in both law and custom.

            Religious objectors like Quakers have long been allowed to affirm without a Bible; they’re now joined by increasing numbers of Jews, Muslims, atheists and others.

            In 1961, the US Supreme Court overturned a Maryland law requiring notary publics to swear that they believed in God. In 1991, a federal appeals court ruled that it was unconstitutional for a judge to compel an atheist prospective juror to either swear or affirm, since either oath could be viewed as essentially religious.

            Today, while mandating that witnesses swear an oath of some sort, federal and most state rules of evidence do not require any mention of God.

            Ohio Revised Code merely says “a person may be sworn in any form he deems binding on his conscience.” No Columbus, Ohio court—from municipal to federal—uses a Bible, though most still end the oath with “so help me God.”

           

 

SQ ARCHIVES HOME