Judicial Proceedings and References to the Deity

References to the deity are commonplace in American courtrooms. Perhaps the most familiar of these are oaths administered in court, by which jurors swear to perform their duties or witnesses swear to tell the truth ‘‘so help me God.’’ In addition, court proceedings themselves, including proceedings of the U.S. Supreme Court, sometimes begin with the formal invocation of divine aid: ‘‘God save this honorable court.’’ Less frequently, particular judges may sponsor prayers or the display of religious symbols such as the Ten Commandments in their courtrooms. Moreover, attorneys sometimes make arguments that touch on religious imagery, sacred texts—especially the Bible, and miscellaneous religious themes. These various practices raise issues under the free exercise and free speech clauses, as well as the Establishment Clause.

Concern for the free speech and religious free exercise rights of jurors and witnesses has gradually prompted revision to long-standing forms of oaths in many American courtrooms. Freedom of speech and free exercise of religion have frequently been understood to mean that individuals cannot be forced to utter sentiments to which they do not adhere. Consequently, many courtrooms now permit both witnesses and jurors to affirm their commitment to tell the truth or fulfill the obligations of a juror rather than to swear in the name of God a commitment to do so. Moreover, at least some courts have held that this kind of accommodation is mandated by the free speech clause, the free exercise clause, or both.

Formal or ritualistic references to the deity in court proceedings might also be thought of as violating the Establishment Clause of the first amendment, which the Supreme Court has variously interpreted as prohibiting government actions with the purpose or effect of significantly advancing religion or of endorsing religion. Nevertheless, the use of oaths invoking the deity or of formal invocations such as ‘‘God save this honorable court’’ has not been prohibited by the Supreme Court. Although it has not considered these issues specifically, the Court’s general holdings concerning public religious practices would suggest that these formal invocations of divine aid would survive a challenge under the Establishment Clause. In Marsh v. Chambers (1984), the Court upheld the practice of having a chaplain chosen by a state legislature offer prayers at the beginning of a legislative session. There, the Court drew attention to the long tradition of such public prayers in American history, emphasizing that legislative prayers had become ‘‘part of the fabric of our society.’’ Presumably, the Court would find similar historical blessing for the practice of oaths in the name of God or ritual invocations such as ‘‘God save this honorable court.’’ The Court might also rely on the concept of ‘‘Ceremonial Deism’’ to analyze formal references to God in the courtroom. Justice William Brennan suggested in a concurring opinion to the decision in Lynch v. Donnelly (1984) that certain public religious references, such as the designation of our national motto as ‘‘In God we trust’’ and the inclusion of the phrase ‘‘under God’’ in the Pledge of Allegiance, had ‘‘lost through rote repetition any significant religious content.’’ References to the deity in formal oaths or ritual invocations at the beginning of court sessions might similarly be thought of as forms of ‘‘Ceremonial Deism’’ and thus immune from Establishment Clause challenges.

Less formal references to the deity in judicial proceedings, such as invited prayers from clergy or the display of religious symbols such as the Ten Commandments, pose more serious issues under the Establishment Clause. These practices can claim less shelter under the mantle of tradition. Moreover, their religiousness has not been blunted by formal repetition. Accordingly, at least some courts have found these kinds of references to violate the Establishment Clause. In Alabama, for example, in the summer of 2001, the chief justice of the state’s supreme court attempted to install a permanent monument to the Ten Commandments in the state judicial building. Lower federal courts declared the display of this monument unconstitutional. When the chief justice refused to comply with a court order that he remove the monument, the other justices on the court intervened to have the monument removed from its public location, and the chief justice was first suspended and then later removed from his judicial office. A few courts have approved the display of the Ten Commandments in or around court buildings, but these have generally involved displays that have been in place for many years. The continued display of religious symbols with a more venerable local history may be thought of as respecting tradition rather than advancing particular religious sentiments.

Finally, religious references are not uncommon in arguments made by lawyers in the course of trials. Attorneys in death penalty cases, for example, will sometimes tender Biblical texts in support of, or in opposition to, the application of the death penalty; and the discussion of these texts will sometimes include references to God. A few jurisdictions declare these religious comments off-limits for lawyers. Nevertheless, the more common result has been for courts to permit lawyers to make passing references to God or to passages or illustrations from the Bible, treating these references as falling within the general rhetorical vocabulary of American culture.

TIMOTHY L. HALL

References and Further Reading

• Curry, Thomas J. Farewell to Christendom: The Future of Church and State in America. Oxford: Oxford University Press, 2001.
• Hamburger, Philip. Separation of Church and State. Cambridge: Harvard University Press, 2002.
• Levine, Samuel J., Religious Symbols and Religious Garb in the Courtroom: Personal Values and Public Judgments, Fordham Law Review 66 (1998): 1505–1540.
• Levy, Leonard W. The Establishment Clause: Religion and the First Amendment. 2nd Rev. Ed. Chapel Hill: University of North Carolina Press, 1994.

Cases and Statutes Cited

• Lynch v. Donnelly, 465 U.S. 668 (1984)
• Marsh v. Chambers, 463 U.S. 783 (1983)

See also Ceremonial Deism; Civil Religion; Establishment Clause Doctrine: Supreme Court Jurisprudence; Forced Speech; Lemon Test; Lynch v. Donnelly, 465 U.S. 668 (1984); Marsh v. Chambers, 463 U.S. 783 (1983); No Endorsement Test