Alternative to Swearing-in Oath in Court Struck Down

Witnesses in court proceedings cannot be forced to affirm that they are telling the truth if they object to such affirmations on religious grounds, the U.S. 9th Circuit Court of Appeals ruled Thursday.

In striking down the established legal alternative to a sworn oath for those with religious objections to taking oaths of any kind, a divided three-judge 9th Circuit panel said there is no need for any formal vow of honesty before a witness testifies.

Suggesting new language for that part of courtroom ceremony still known as the “swearing in” of witnesses when religious objections arise, the 9th Circuit panel said the following phrase would be sufficient:

“I understand that I must accurately state the facts. I agree to testify under penalty of perjury. I understand that if I testify falsely, I may be subject to criminal prosecution.”

The new language contrasts with language currently used for witnesses who object to giving a formal oath: “I affirm that the testimony I give will be the truth, the whole truth and nothing but the truth.”

Witnesses with no religious objections to oaths still regularly recite one of the best-known phrases of the law: “I solemnly swear to tell the truth, the whole truth and nothing but the truth, so help me God.”

Ironically, one of the two judges joining in the opinion was Judge Charles E. Wiggins of San Francisco, the author of the federal rules permitting witnesses to simply affirm their truthfulness as an alternative to taking a sworn oath.

Wiggins, appointed to the 9th Circuit last year, had drafted the rules while a member of the House Judiciary Committee to protect the rights of those who objected to taking sworn oaths on religious reasons.

The opinion came in the case of a Boise, Ida., man, George Gordon, who was jailed 12 days for contempt of court for refusing to either take an oath or affirm his truthfulness during a deposition in a civil case over a personal debt.

During oral arguments when the case was heard in August in Seattle, Wiggins surprised both Gordon and the lawyers in the courtroom by personally apologizing to Gordon, described as a fundamentalist Christian.

“I owe you an apology sir,” Wiggins said. “I am the draftsman of those rules, and I thought I was taking care of folks like you.”

While Wiggins was the key vote in swinging the the 9th Circuit panel’s decision to Gordon’s side, the opinion was authored by Judge Harry Pregerson of Los Angeles. It becomes immediate law in federal court and administrative proceedings, such as the swearing-in of federal officials, in California and eight other western states, and will serve as a guide for state and federal courts throughout the nation.

Representing himself in his appeal to the 9th Circuit, Gordon argued that an affirmation is the same thing as an oath, as far as the Bible is concerned, regardless of what lawyers might think.

“Oaths can only be made to God. An affirmation is an oath by another name,” Gordon said. “A rose by any other name is still a rose, and an oath by the name affirmation is still an oath and is a religious ceremony.”

Gordon then said he was willing to say that he understood he had to tell the truth, that he agreed to testify under penalty of perjury and that he knew he could be prosecuted if he lied. That language was adopted as an acceptable alternative by the 9th Circuit judges.

Opposing Gordon’s appeal to the 9th Circuit, lawyers for the state of Idaho argued that there are no religious overtones to a simple affirmation of honesty and said there was nothing precluding him from later arguing that any statement at all was against his religion.

“Or maybe plaintiff’s religious convictions prevent another human being from sitting in judgment of him or his cause of action,” they argued before the 9th Circuit. “Defendants (the state) do not intend to be ludicrous but rather to suggest the possible implications of compromising the federal rules of civil procedure in the name of religious convictions.”

Rejecting that argument and finding that Gordon’s views were sincere, Pregerson wrote that the First Amendment’s guarantee of freedom of religion requires federal procedural rules to be interpreted “flexibly” to protect religious beliefs.

“We therefore conclude that any statement indicating that the deponent is impressed with the duty to tell the truth and understands that he or she can be prosecuted for perjury for failure to do so satisfies the requirement for an oath or affirmation,” Pregerson wrote.

“Gordon has demonstrated that raising his right hand and swearing an oath or making an affirmation violates his sincerely held religious beliefs. Deponents, furthermore, need not raise their hand when they state the words necessary,” Pregerson added.

Dissenting from the opinion was Senior U.S. District Judge Stanley A. Weigel of San Francisco, sitting as a designated member of the 9th Circuit panel.

“The alternative of affirming testimony has been provided for all witnesses who, for religious or other reasons, object to oath taking,” Weigel wrote. “Appellant . . . should not be permitted to disregard reasonable federal rules of procedure, because of his insistence, however sincere, that his esoteric interpretation of one of those rules must prevail over the interpretation established by the federal courts.”