“I Swear to God: Oaths, Accommodations, and the Binding of Conscience”
Matthew P. Cavedon
Watch any courtroom drama and you know something serious is about to happen when a witness takes an oath. In the typical Hollywood version, it goes like this: “Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?” The witness then puts his conscience on the line by declaring, “I do.”
But any oath in a real-life American criminal court might sound a bit different. The phrasing of the first part might ask whether a witness swears or “affirms” to tell the truth. The reference to God might be omitted. You might even see something quite a bit further out of the ordinary—in one English courtroom in 1744, several Hindu witnesses took an oath by touching the foot of a Brahmin priest.1Omychund v Barker 1744 Willes 538.
The history of oaths in our system of law reflects the pursuit of one aim by two different means. The goal is to bind the conscience of the person who takes the witness stand. For many religious witnesses, that cannot be done without invoking God. But when the very conscience to which the court is appealing would either be violated by swearing an oath or make a mockery of the words, some other form must be used.
Legal oaths likely have their origins in religion. Polytheists in ancient Greece and Rome believed that people who lied after taking a formal oath would be punished by the gods.2 Frederick B. Jonassen, “So Help Me?”: Religious Expression and Artifacts in the Oath of Office and the Courtroom Oath, 12 Cardozo Pub. L. Pol’y & Ethics J. 303, 312 (2014). The Book of Genesis records a discussion about an oath between Abram and Sodom’s king. Eugene Milhizer notes that Judaism has long recognized that an oath alone could support a legal judgment, including resolving allegations of theft. He found similar precedent in Babylonian, Roman, and Islamic societies of long ago. The Christian practices of medieval England that directly contributed to the American legal tradition likewise grounded courtroom testimony’s truth in an appeal to the divine justice that governs the universe.3Id. at 312–24 The religious conscience is made to quiver before the seriousness of legal proceedings. Even today, of course, oaths generally have religious invocations.
However, excluding people who cannot swear oaths from testifying would obviously violate legal equality. It would also deny people justice by blocking certain witnesses from giving evidence. Imagine the evils that would arise from letting a murderer who was seen committing the act by three people get away with the crime simply because their words were worth nothing in court.
Anglo-American law has long had two main remedies for this. One is to simply do what the 1744 court did and let witnesses take whatever sort of religious oath they deem binding. This ensures that religious witnesses’ consciences are fully activated. Alternatively, a court can skip the oath altogether, and simply require that witnesses affirm that they are telling the truth. This is the approach English law took with Quakers beginning in 1696, and later with other religious dissenters.4Id. at 319. Though it may seem contradictory, this actually serves the same purpose as a religious oath—it appropriately brings the conscience to bear on what is about to be said.
Both of these English approaches were widely adopted in the laws of American colonies. North Carolina’s charter, for instance, made “fit and reasonable” accommodations for religious minorities, including people who could not swear oaths. Georgia’s naturalization oath included the phrase “on the faith of a Christian”—but dropped this language for Jews. This accommodation continued after Independence. In 1820, in Jackson ex dem. Tuttle v. Gridley,518 Johns. 98, 103 New York’s highest court held that “Mahometans may be sworn on the Koran; Jews on the Pentateuch, and Gentoos [Hindus] and others, according to the ceremonies of their religion, whatever may be the form.” Again, common sense demands no less. Consciences must be bound in court. Consciences differ in terms of what they consider binding, so courts must use different forms to bind them.
A present-day case illustrates this concept well. Decided by the U.S. Court of Appeals for the First Circuit just this April, the case of Perrier-Bilbo v. United States6954 F.3d 413 (1st Cir. 2020). involved an atheist who wanted to become a U.S. citizen, but objected to the naturalization oath’s ending phrase, “so help me God.” The government offered her two accommodations: she could just skip that part of the oath during a mass ceremony, or she could have a private ceremony where the phrase would not be said at all. She rejected the offer, and instead sued to have the religious invocation declared unconstitutional. The First Circuit rejected her appeal, affirming the use of religious references in oaths. The Court found the language at issue to have a historical pedigree going back all the way to this country’s founding. Regardless of whether it was originally included to make the naturalization oath mirror other official oaths, or as a way of recognizing the importance of religion to many Americans, the language was constitutionally permissible.
The Court could have gone a step further and found that the government’s interest in having the religious language for other people was precisely the same as its motive for offering the woman alternatives. Uncle Sam simply wanted to be sure that each new citizen’s word, like any legal oath, was as conscientiously binding as possible.7For additional information on the history of legal oaths, see Religious Organizations and the Law §§ 6:9–6:14 (West 2017), from which much of my research is drawn.♦
Matthew P. Cavedon is a criminal defense attorney in Gainesville, GA. He graduated from Emory University in 2015 with a law degree and masters of theological studies.