Swearing Oaths on the Bible – Tradition and the Law

In 2007, Representative Keith Ellison of Minnesota was sworn in as the first Muslim member of Congress.  During the oath, instead of using the Bible, he placed his hand on Thomas Jefferson’s 1734 translation of the Koran. This created a firestorm of criticism from conservative Christians.  When Representative Rashida Talib of Michigan took her oath on the same Koran in 2018, the firestorm was reignited.

Must oaths be sworn on the Bible?  What is the background and current status of the law?

Oath of Office: The President

George Washington started the tradition of taking the oath of office using the Bible. In 1789, he took the oath in New York with an altar Bible from the local Masonic lodge.  He kissed the Bible afterward. Using the Bible became a common tradition thereafter.

However, swearing the oath of office on the Bible is not required by the constitution or the law, and Article VI, Section 3 on the U.S. Constitution mandates: “No religious test shall ever be required as a qualification to any office or public trust under the United States.”

The Presidential Oath is specified in Article II, Section 1: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Although there is no legal or constitutional requirement, most presidents have followed the precedent set by George Washington.

However, both John Quincy Adams and Franklin Pierce swore on a book of law, with the thought that they were swearing on the Constitution.

Teddy Roosevelt did not use a Bible when taking the oath in 1901.  He was quickly sworn in at a friend’s house upon learning of the assassination of President William McKinley, and no Bible was available.

After the assassination of President John F. Kennedy, Lyndon Johnson was sworn in using a Roman Catholic liturgical book, available on Air Force One.

Some presidents have used two Bibles.  These include Harry Truman, Dwight Eisenhower, Richard Nixon, George H.W. Bush, Barack Obama, and Donald Trump. President Obama used the Bibles of Abraham Lincoln and Martin Luther King. President Trump used a Bible given to him by his mother, plus one used by Abraham Lincoln.

Oath of Office: Congress and Judges

Prior to the controversy created when Representatives Ellison and Talib used the Koran, Jewish office holders had used the Hebrew Bible and Jewish prayer books during swearing in ceremonies. Atheists and agnostics have not used any religious books. Recently, Senator Tulsi Gabbard of Hawaii, the first Hindu member of Congress, chose the Bhagavad Gita.  Hawaii Senator Mazie Hirono, a Buddhist, and did not use any book.

(Elected and re-elected Senators and Representatives are officially sworn en masse on the first day of Congress.  No books are used. Senators and Representatives use Bibles and other books during their unofficial personal swearing in ceremonies and photo ops.)

Interestingly, there was speculation whether Mitt Romney, if elected president, would use the Book of Mormon during his oath.  However, when he was sworn in as Governor of Massachusetts and U.S. senator, he used the same Bible his father used when being sworn in as Governor of Michigan.

Government officials take the same basic oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” “No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Oath of Witnesses

For much of our early history, many states did not permit non-believes to give testimony in court. For them, swearing on the Bible was meaningless.

Today, it is well settled that the First Amendment religion clauses prevent the government from forcing a person to perform any religious act, including swearing oaths on a Bible.  The federal system and most states allow witnesses to either “swear” or “affirm” whether on a Bible or other religious text, or no book at all.

A typical witness oath in federal court is:

“You do affirm that all the testimony you are about to give in the case now before the court will be the truth, the whole truth, and nothing but the truth; this you do affirm under the pains and penalties of perjury?”

Witness oaths vary from state to state.

I have never personally witnessed a Bible being used during an oath in California.  The courts currently administer the following witness oath:

“You do solemnly state [formerly swear or affirm] that the testimony you may give in the case now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God? (or, under penalties of perjury).”

(I am surprised that “so help me God,” another George Washington tradition, is still used in secular California.)

(See: “Law and Religion: Cases and Materials,” Chapter Three, 6th ed., Brett London (1998, unpublished);  “You Don’t Need to Take an Oath on a Bible,” New York Times, Dec. 13, 2017; “Bibles Aren’t Required for Oath of Office,” FactCheck.org; “Oath,” “Sworn Testimony,” “Oath of office of the President,” “No Religious Test Clause,” “Clerk of the U.S. House of Representatives,” Wikipedia; Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 210-11 (1948); Fed. R. Civ. P. 603; Cal. Evid. Code § 710; “The First Day of a New Congress: A Guide to the Proceedings on the Senate Floor,” Judy Schneider, Dec. 19, 2018, http://www.senate.gov; “What Happens in the House of Representatives on the First Day,” Congressional Institute, Jan. 6, 2015) http://www.congressionalinstitute.org.)

(More Articles: http://www.londonedition.net)

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