Is it legal for a judge to require me to swear an oath on a bible?
For a significant portion of the United States’ history, many states did not permit non-believers to give testimony in court.1 Over time, state by state, those religious requirements began to fall away.2 In 1846, Justice Scott, writing for the Supreme Court of Virginia reasoned:
Suppose a witness to be the worst of Infidels. Tell him that the law ranks him with those whom it holds infamous; that if he dares avow his opinions, he will be rejected from the witness stand, and run the risk of being hissed out of Court . . . and you add hypocrisy to infidelity. Push the inquisition to the extent of putting him to the question on his voir dire. If, as the objection supposes, he is incapable of telling the truth, he will deny his opinions, and what is the test worth?
If he is honest enough to subject himself to the disability, rather than tell a lie, why exclude him?3
Today it is well settled that the Establishment Clause of the First Amendment of the U.S. Constitution denies the government any authority to coerce a person into performing a religious act, including swearing oaths on a bible.4 To that end, the federal court system and most state court systems have established rules explicitly providing for witnesses to give either an oath, whether on a bible or other religious scripture, or an affirmation.5
If you should find yourself in a position to “swear or affirm,” whether as a witness, as a jury member, or as a requirement of accepting government employment, let the official administering the oath know in advance that you wish to give an affirmation, rather than swear an oath. If you’re a witness, this may mean letting the attorney who intends to call you to the stand know to inform the deputy of your preference. If being sworn in for a jury, or attesting to the accuracy of a document before a notary public, or as part of a government job, speak to the person administering the oath yourself.
If, after you have made the person administering the oath aware of your preference, the person refuses to allow you to give an affirmation, please let us know by submitting an incident report to the American Atheists Legal Center.
1 Curtiss v. Strong, 4 Day 51 (Conn. 1809) Arnd v. Amling, 53 Md. 192 (1880); Thurston v. Whitney, 56 Mass. 104, 110 (1848); Phebe v. Prince & Prince, 1 Miss. 131, 131 (1822); Jackson v. Griddley, 18 Johns. 98, 103 (N.Y. 1820); Brock v. Milligan, 10 Ohio 121, 125-26 (1840).
2 Mo. Const. of 1875, art. II, § 5; Fuller v. Fuller, 17 Cal. 605, 612 (1861); Bush v. Commonwealth, 80 Ky. 244, 250-51 (1882); Colter v. State, 39 S.W. 576, 577 (Tex. Crim. App. 1897); Perry v. Commonwealth, 44 Va. 632 642 (1946).
3 Perry v. Commonwealth, 44 Va. 632 642 (1946).
4 Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 210-11 (1948); Doe v. Phillips, 81 F.3d 1204, 1210-11 (2d Cir. 1996).
5 Fed. R. Civ. P. 603; Fed. R. Bankr. P. 9012; Cal. Evid. Code § 710; Mo. Rev. Stat. § 491.380 (2015); N.C. Gen. Stat. § 8C-603; N.Y. C.P.L.R. 2309 (Consol. 2016); Tex. R. Evid. 603.