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When church and state are not separated in the courtroom

Dec 07, 2006 When church and state are not separated in the courtroom

On August 15, 2006, I blogged how my move from Manhattan to the DC area for law school in 1986 brought with it substantial culture shock about being around honors to confederate soldiers and the confederacy all over Virginia. I would see the stars and bars draped on vehicles (usually outside of Northern Virginia, which is closest to Washington, DC); a mural in a Maryland restaurant paying tribute to confederate soldiers singing "Maryland, Oh My Maryland" as they crossed the Potomac into Maryland; the major [Robert E.] Lee Highway/Route 29 going straight to the District of Columbia border; courthouses and government offices closed on [Robert E.] Lee – [Stonewall] Jackson Day; and a confederate soldier statue standing guard over the Loudoun County courthouse (which was restored this year for several thousand dollars) and an engraved portrait of Robert E. Lee in the Culpeper County Circuit Court clerk’s office.

Something else that makes Virginia stand out for me is the continued use of "so help me [deity]" and bibles for swearing in witnesses and others in some of the courthouse — although rarely in the Northern Virginia courthouses where I usually practice law — which I have not seen in the many Maryland and District of Columbia courts where I practice. The First Amendment to the Constitution says that "Congress shall make no law respecting an establishment of religion." I think that this provision is sufficient to banish bibles and "so help me [deity]" from courtroom.

Recently, a chief county courthouse clerk in Virginia told me that "so help me [deity]" is mandated by  the court rules for swearing in witnesses. My research showed he was incorrect, and I then sent the following message to a Virginia lawyers listserv about other lawyers’ experiences with the situation.  

"Hi, all (or at least to ACLU’ers, agnostics, atheists and secular humanists)-

What’s with the use of bibles and the deity’s name for swearing in witnesses in various Virginia courts? In _________   District Court, I saw people being sworn in with “so help you [deity],” and the clerk of court said the language is in the rules. However, I only found such a reference for swearing in grand jurors, government officeholders, and national guard members. Therefore, I think this clerk is mistaken. Do you have any thoughts?

"Also, when I got sworn into the E.D. Va. [federal trial court] in Alexandria before Judge ______________________,  the bailiff smilingly brought me over a leatherbound bible (I’m a vegetarian who tries avoiding leather, and am Jewish, and don’t think this was just the Hebrew testament). I told my sponsoring lawyer I didn’t say anything about it just so that he’d not be delayed any longer from getting back to the office, and he appreciated that very much.

"Do you see ‘so help me [deity]’ and bibles in the Virignia courts where you practice? Which courts are they?

"If the courts are sworn to uphold the Constitution, I’d have more confidence in that if they upheld the First Amendment’s mandate of church-state separation."

Here is a summary of some of the listserv replies:

– In federal court in Richmond, witnesses are presented a bible as part of being sworn in.

– In one Northern Virginia court, a now-retired judge would have the jurors swear their oath on one of three bibles. 

– A Northern Virginia juror in one case refused to swear his oath to a deity, declaring his non-belief in a deity, and his decision not to so swear.

– This month, before a federal judge with senior status in Alexandria, Virginia, the bailiff brought the half dozen lawyers one bible to put their hands on as they were sworn in toghether.

– It appears that most courtrooms use a variation of the following First Amendment-friendly oath: "Do you swear or affirm that the testimony that you are about to give is the truth?"

Old habits sometimes die hard. I hope the use of the bible and the deity’s name for court swearings dies soon.

Jon Katz.

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