Last updated on: 3/19/2008 | Author:

Why Can One Pledge to Tell the Truth “under God” (or Affirm) in Court?

General Reference (not clearly pro or con)

John Ruch, columnist, explained in a Jan. 21, 1999 article that appeared on his website:

“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 U.S. 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 considered 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…

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 U.S. Supreme Court overturned a Maryland law requiring notaries public 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.”

Jan. 21, 1999 - John Ruch

Steven Epstein, JD, Assistant Professor of Leagal Writing at the University of Illinois, explained in his Dec. 1996 Columbia Law Review article, “Rethinking the Constitutionality of Ceremonial Deism”:

“The Supreme Court has utilized the concept of ceremonial deism to immunize a certain class of activities from Establishment Clause scrutiny. This class of activities seems to have or is perceived to have certain defining characteristics supporting a definition of ceremonial deism that would include all practices involving:

  1. actual, symbolic, or ritualistic;
  2. prayer, invocation, benediction, supplication, appeal, reverent reference to, or embrace of, a general or particular deity;
  3. created, delivered, sponsored, or encouraged by government officials;
  4. during governmental functions or ceremonies, in the form of patriotic expressions, or associated with holiday observances;
  5. which, in and of themselves, are unlikely to indoctrinate or proselytize their audience;
  6. which are not specifically designed to accommodate the free religious exercise of a particular group of citizens; and
  7. which, as of this date, are deeply rooted in the nation’s history and traditions…

Under English common law, no one but a believer in God and in a future state of rewards and punishments could serve on a jury or testify as a witness… This is the courtroom atmosphere American inherited. Consequently, in certain places in early America the privilege of serving as a witness or on a jury was expressly restricted to Christians… Oaths on the Bible are still standard fare in American courtrooms today; witnesses, grand jurors, prospective petit jurors, and interpreters are all asked to swear to tell the truth, ‘so help me God.'”

Dec. 1996 - Steven Epstein, JD