Ryan Jayne: Religious oaths in court need to be eliminated
By Ryan Jayne
The British Journal of Psychology recently published a study that found jurors are more likely to convict defendants who opt for a secular affirmation rather than a religious oath when taking the stand. This anti-atheist discrimination is unsurprising — and the study is a sobering reminder of the ease of correcting it.
The best solution is the simplest: to keep state and church entirely separate by omitting the religious oath altogether.
The U.S. Supreme Court has recently attempted to recast its Establishment Clause test in terms of coercion, as though the only thing the First Amendment prohibits is the government forcing someone to profess a religious belief. But FFRF has long fought for strict separation, which the First Amendment’s authors understood was necessary. This study shows yet another reason why.
When a court requires criminal defendants either to swear a religious oath, as most do, or to give an alternative secular affirmation, it forces nonreligious defendants to declare their lack of religion to the judge or jury. Imagine the outrage if criminal defendants were required to divulge to a jury that they were Jewish, Muslim or Catholic at the opening of their testimony! Anyone would see this as an invasion of privacy and an unnecessary invitation to jurors to discriminate.
The alternative is simple: All defendants should be treated the same way by swearing to tell the truth under the threat of perjury. Most jurors would not mind this change, and the rare jurors who don’t take secular affirmations as seriously as religious oaths are the very ones who will discriminate against nonreligious defendants. If all witnesses swore the same oath, discrimination would be greatly reduced at no cost.
Our courts of law are secular entities, centered on evidence and proof. Sprinkling in religion by encouraging witnesses to swear to an invisible deity makes no sense, and now we know that it also leads to discriminatory results. This study out of Britain should remind Americans that we were the first country to formally separate church and state, because we learned from Britain’s mistakes. We should have gotten rid of religious oaths when we stopped being British subjects.
Eliminating religious oaths would match the tenor of the U.S. Constitution — the constitutionally prescribed presidential oath does not contain any religious language, and the only references to religion anywhere in the Constitution are exclusionary. At a time when the rule of law is being openly challenged, with religious rhetoric offered in its place, it is more important than ever that we fight for the strict separation of church and state and stand up against anti-atheist discrimination.
Attorney Ryan Jayne is a member of FFRF’s Strategic Response Team, which spearheads FFRF’s state-based legislative advocacy.