Until well into the twentieth century, American courts held that only “godly” men and women could serve as jurors and witnesses. It was believed that only such individuals could confirm before God their willingness to fulfill their duties responsibly, hence the use of the familiar phrase “So help me God” in connection with oaths. Nontheists, lacking the ability (or inclination) to take a religious oath, were perceived as unreliable and untrustworthy. This view was starkly expressed in an 1871 Tennessee Supreme Court decision: “The man who has the hardihood to avow he does not believe in God, shows a recklessness of moral character and utter want of moral sensibility, such as very little entitles him to be heard or believed in a court of justice in a country designated as Christian” (Odell v. Koppee).
Today, nontheists generally fare better in the courts. Potential jurors in all states have the right to take nonreligious affirmations instead of religious oaths in confirming their willingness to serve. A court cannot turn away a potential juror based on her or his disbelief in God. However, some states make it difficult to exercise this right. For example, in California, a nonreligious affirmation is given by default, but in Oregon a religious oath is given by default, and the burden is on the potential juror to know about the option of a secular affirmation and to request it.
Until recently, nontheist jurors in Tennessee could, in principle, request a nonreligious affirmation, but it was not easy. After serving on a jury in Tennessee in the summer of 2007, I concluded that it was nearly impossible. I asked the Center for Inquiry for legal assistance to help me address this problem. Eight months of petitioning state and local government officials—without resorting to legal action—produced a new juror oath policy. To our surprise, the new policy went beyond the modifications we had requested.
The old and new policies can best be understood with some background information. As a first-time juror, I was not aware of the religious content of the three oaths I would be asked to take, of my right to request nonreligious affirmations, or of how to ask for nonreligious affirmations during the court proceedings. The first religious oath I encountered was written on the pretrial juror registration form. I signed the oath but returned two days later to request that the clerk strike the words “So help me God.” The clerk complied after I explained my objections to the phrase. This prompted me to write a letter to the county mayor requesting that the oath policy be reviewed.
Before I left the clerk’s office, I asked her about courtroom oaths, but she offered no advice. At the trial, my number was drawn and I took a seat in the jury box. When the last potential juror was seated, we were immediately sworn in as a group for the questioning period known as voir dire. There was no pause in the proceedings before this oath; thus there was no opportunity to address the judge or a court officer. I considered dropping my hand during this religiously oriented oath, but instead I took it without protest. Since the oath contained the word affirm as well as an invocation of God, I was even more confused about how to request a nonreligious affirmation. After voir dire, I took the final oath to serve on the jury.
Some days after the trial, I received a letter from the county attorney in response to my letter to the mayor. The attorney, speaking for the court, argued that since jury duty was optional and was not a benefit, jurors who refuse religious oaths could be dismissed. He mentioned no right or procedure by which a potential juror might request a nonreligious affirmation.
I contacted the Center for Inquiry for advice on how to proceed. Ron Lindsay, the Center’s legal director, replied to the county attorney with a legal analysis of the county’s argument. Lindsay contended that all potential jurors, regardless of religion or nonreligion, have an equal right to serve on a jury under federal law and the Tennessee Constitution. Lindsay also addressed a peculiarity about Tennessee oaths. The terms oath and affirmation are interchangeably defined in Tennessee law, and both refer to a hybrid religious oath/affirmation. This means that a potential juror asking for a nonreligious affirmation may be unable to communicate such a request without further explanation, i.e., a profession of disbelief in God while in the courtroom.
I wrote letters to my state legislators but received only discouraging replies. Tennessee’s governor expressed sympathy with my situation, but he believed only a change in statute could provide a remedy. I called the clerk of the Tennessee Supreme Court and was directed to the Tennessee Administrative Office of the Courts and to the Tennessee Judicial Council, which is a committee of lawmakers, justices, judges, attorneys, and others who are charged with reviewing state law and policy pertaining to the courts. The Judicial Council’s chair invited me to speak before that body, and Lindsay wrote another letter outlining the legal and ethical reasons for reforming the state’s oath policy to include, at the very least, an easier way for nontheists to request a nonreligious affirmation.
During my presentation to the Judicial Council, I learned that the court clerk in my county had dropped the phrase “So help me God” from the jury registration form. Moreover, the chair of the Council indicated that the justices would consider further policy changes.
Two months later, I received a letter from the Administrative Office of the Courts stating that the Supreme Court agreed with Lindsay’s arguments. The letter also stated that the justices had decided to change Tennessee’s courtroom oath policy and to implement better training for county clerks. We had hoped for a policy change that would facilitate requests for nonreligious affirmations. Significantly, we were instead informed that the Supreme Court chose to drop the phrase “So help me God” from all default courtroom oaths, a policy change that affects all courts in Tennessee.