Frederick B. Jonassen, Barry University School of Law, is publishing 'So Help Me?': Religious Expression and Artifacts in the Oath of Office and the Courtroom Oath in volume 12 of the Cardozo Public Law, Policy and Ethics Journal (Spring 2014). Here is the abstract.
For the purpose of taking an oath, the use of the Christian Bible, which includes both the Old Testament (the Jewish scriptures) and the New Testament (the scriptures relating to Jesus Christ), or the use of the New Testament alone, has been traditional and commonplace in Western culture because Christianity was historically the West's predominant religion. However, as non-Christians were permitted to participate more fully in legal proceedings and to work as government officials, the use of other religious texts or symbols, or the non-use of any religious artifact at all, has become more common. Although it is argued that non-Christians could swear on the Bible as the source of the values that animate the American government, the imposition of the Bible as the only means of taking an oath is unacceptable. Such a rule would be a religious test, specifically prohibited by the Constitution, as well as a violation of the Free Exercise and Establishment Clause.
But aside from this, for many, an oath is a personal commitment to tell the truth or keep a promise, so it is appropriate that the oath-taker not be coerced into professing a religious belief she does not have. For most people, the oath long ago became a perfunctory form of asserting the truth of a statement or promise with little regard for the religious text that supported the truth of the declaration. Nevertheless, the Biblical text that accompanies the oath creates a difficulty for the oath-taker who places no credence in Christianity. The act of swearing upon the religious text conveys the appearance of a personal faith or belief in the religion represented by the text. For the individual who does not believe in Biblical revelation, the deception is hardly consistent with a ceremony meant to represent a commitment to truth telling. Indeed, any commitment to be truthful based on a religious belief that one does not hold would appear to be of little value. In the times that required oaths to be sworn upon the Bible, conscientious non-Christians, as well as Christians with religious objections to oath taking, refused to take an oath on the Christian scriptures, and as a result were effectively excluded from legal procedures or public offices.
This article reviews the history of the struggle to remove the obligation to swear an oath with the Bible or with any religious text or artifact. In view of that history, the article concludes that the freedom to choose from a variety of religious or secular texts is consistent with arguments that favored the adoption of the No Religious Test Clause of the Constitution at the ratifying conventions of the states. However, the acceptance of this freedom of choice and diversity raises issues of jury bias in regard to courtroom oaths and of political manipulation by religious symbols in regard to oaths of office. The article concludes that while religious choice may be appropriate for the oath of office, such choice for the oaths of witnesses and jurors is likely to create difficulties that necessitate the complete removal of religious artifacts and expression from the courtroom oath.
Download the article from SSRN at the link.