Denial of Equal Rights to Religious Minorities and Non-Believers in The United States

B. H. HARTOGENSIS

Yale Law Journal, vol. 39, pp. 659-681 (1930)

  1. Christianity Part of Our Law
  2. Are Oaths of Believers Alone Believable?
  3. Official Oaths Founded on Christian Belief
  4. Compelling Marriage in the Face of the Church
  5. Sunday Laws
  6. Blasphemy
  7. Bible Reading in the Schools

ARE OATHS OF BELIEVERS ALONE BELIEVABLE?

If this is true (and it was in 1930), and if it is true that the very definition of an oath is an act of religious worship, can there be any doubt that the Founding Fathers did not intend to prohibit the states from requiring belief in God from those who would take an oath?

 The world has been so long habituated to giving credence to affidavits founded on religious beliefs, that the expression, by such an oath, of belief in a Supreme Being who will hold one to account either in this world or in the world to come for false swearing seems even today to most men the one means of undertaking an obligation to tell the truth. This is the common law except where changed by statute.[33]

Is a man’s credibility to be rated according to his connection with a religious organization or belief in its tenets? There are many intelligent men today who could not conscientiously take an oath on the Gospels, or with reference to God.[34] If challenged upon the test of belief in a future state of reward and punishments in this world or elsewhere under God’s dispensation, they would fail. There are many high class lawyers of the type of Clarence Darrow who must be disqualified, if put to the test; likewise many good churchmen, who call themselves Modernists.

A state may choose to believe an atheist, but the Constitution does not require any state to do so. The Framers did not intend to force states to allow atheists to take an oath.

The State is interested in the truth-telling of witnesses, not in their religious beliefs. It does everything to make the obligation to tell the whole truth solemn and impressive, binding on the conscience of the affiant, with the caution that perjury will be met by punishment as an offense against the peace, order, and dignity of the State and not against a Supreme Being. The fervor of the colonists’ religious devotion simply reflected the ancient common law view that non-conformists and non-believers in the God of the Established Church were non dignus fide, not worthy of belief. Lord Coke’s mischievous doctrine that such unbelievers were perpetui inimici, eternal enemies, was only partially relieved by a later decision, for the one practical purpose of letting in the testimony of Jews and Eastern non-believers as to the contracts of Englishmen, according to the custom of merchants.[35]

Thus it was at the beginning of Statehood, and has continued in some states to this day. Significantly it was the rule of evidence for all federal courts by the Judiciary Act of 1789, so that by federal law a witness was not competent to testify who did "not believe that there is a God who rewards truth and avenges falsehood." The rule was amended by Act of Congress, June 29, 1906,[36] providing that the competency of a witness to testify in any civil action, suit, or proceeding in the courts of the United States is to be determined by the laws of the state in which the court is held. But this, as we shall see, works an injustice to the non-believer and non-conformist in some states.[37] It is a later development, not yet reached in all states, that there are non-believers, even atheists, whose word can be believed, even though they cannot measure up to the formal requirements of the old common law rule.

Since Omychund v. Barker[38] reversed the mischievous dictum of Lord Coke, there has grown up in England and America a body of public opinion reflected in legal decisions that the oaths of unbelievers deserve respect. So that in England, even with an Established Church, and in the liberal states of the Union no person is "incapacitated from being a witness on account of his religious belief" (overruling Chancellor Kent), and any form of oath suffices that actually binds the particular witness’s conscience even if it varies from the orthodox form.[39] But the old rule has not yet completely relaxed its hold in America and requires obeisance in certain reactionary states. A typical provision is the following clause in the Bill of Rights of the Maryland Constitution:

"Nor shall any person, otherwise competent, be deemed incompetent as a witness or a juror, on account of his religious belief; provided he believes in the existence of God and that under His dispensation, such person will be held morally accountable for his acts and be rewarded or punished therefor in this world or the world to come."[40]

In Virginia a witness who believes in a Supreme Being and present punishment was held in the early leading case of Perry v. Commonwealth[41] to be competent because no religious opinion was there required by statute; likewise in Kentucky[42] and other states. In New Jersey the same rule applies to all cases in which the witness is a party to the proceedings.’[43] Despite North Carolina’s liberal constitution, Shaw v. Moore[44] remains the law of the state requiring belief in God and divine punishment as the test of competency of witnesses. In that case one was admitted who believed "in the obligation of an oath on the Bible, in God and Jesus Christ, and that God will punish in this world all violations of His law, that the sinner will be inevitably punished in this world for each and every sin, but there would be no punishment after death, but all would be happy and equal to angels."[45] In Delaware, a disbeliever has been held to be incompetent because the constitution impliedly requires belief in a Deity.[46] On the other hand Connecticut by its late Constitution of 1888 reverses its former disqualification of atheists and now admits their evidence; the like has happened in New York, Kansas, and Florida.

There are several constitutions which are very liberal, and likewise many judicial constructions quite contrary to the above restrictions. For example, in Arizona the mode of administering an oath or affirmation must be such as shall be most consistent with and binding upon the conscience of the person making such oath or affirmation.

Typical of the modern view, also, is the decision in a Louisiana criminal case that an atheist may testify, since the statute does not make belief in the existence of a God essential.[47] Such a decision leads to the doctrine laid down for English law that "a witness may be sworn in the form which he expressly or impliedly declares to be binding on his conscience" -- a doctrine founded on the liberal English statute which is in nearly the same words.[48]

The "great advance" spoken of here is a sociological phenomenon, not a constitutional requirement.

Generally speaking there continues to be a great advance in many states to set aside the religious disqualification, but much confusion remains in judicial opinions. Even under federal procedure the testimony of Chinamen for certain purposes is held unreliable and must be corroborated by that of white men, on the ground of lack of proper religious beliefs.[49]

The evidence of a witness who did not regard the obligation of an oath as higher than that of her word has been rejected in England, and this rule is now generally followed in this country.[50] Clearly a witness must be sensible of the obligation of an oath, before he can be permitted to testify, and under any condition is punishable criminally for false swearing. The law requires either of two guaranties of the truth of what a witness is about to state, not necessarily both; he must be in fear of punishment by the laws of man, or he must be in fear of punishment by the laws of God.[51]

Now consider the qualification of witnesses to formal papers. Many affidavits and attestations to such formal papers as complaints, bills in equity, proofs of claims, deeds of trust, and wills, which constitute the only proof of thousands of juridical facts arising daily in our modern life, are likely to be thrown out because the oath may be challenged for religious disqualification. A leading case is Curtiss v. Strong,[52] where under the traditional religious disqualification, one who did not believe in the obligation of an oath or any accountability for his conduct after death was held not to be a competent witness to a will, and the will was consequently not admitted to probate. A later Pennsylvania case decided that even after the death of an attesting witness, a non-believer, his competency could be attacked and the will impeached.[53] Under similar authority in the states which disqualify unbelieving witnesses, it is inevitable that rights in property will be assailed now that this opening to attack is made, with results most unexpected by the parties in interest. Confronted with these authorities, prudent lawyers in states where testimony of such non-believers will not be received will meticulously select believers as attesting witnesses to all documents, in order to avoid the risk of a fatal disqualification.

The right to give testimony is not merely a privilege, but is an especially valuable right to a citizen, if he be a party in interest or wish to testify for sentimental or business reasons. Moreover according to decisions in New Jersey and Illinois,[54] it is a property right, guaranteed under the Fourteen[th] Amendment to the Constitution. Other states will surely follow the New Jersey statute which recognizes the inalienable right of a party in interest, whatever his beliefs, to give his testimony.[55]

Under much the same line of law and precedent, disqualification of jurors has resulted in states having antiquated laws and restrictions. Maryland, leading this line of attack, has decided that an indictment must fail where a member of the grand jury which found it was disqualified for non-belief.[56]


[33] Cf. Jackson v. Gridley, 18 Johns. 98 (N.Y. 1820).

[34] When Robert C. Ingersoll, an agnostic, became Attorney General of Illinois in 1868, non-believers were disqualified as witnesses under Central Military R. R. v. Rockafellow, 17 111.541 (1856). Out of respect for him the constitution of the state was amended in 1870 so as to change the rule.

[35] Omichund v. Barker, Will. 538 (1744). See Calvin’s Case, 7 Co.Rep. 1, 1a (1608); 2 HALE, PLEAS OF THE CROWN (1778)’ 279. From the time of their expulsion in 1290 until Cromwell’s protectorate, Jews had no legal right to be in England, but they were there in large numbers, being useful in trade with Spain and outlying countries. When their testimony was required to confirm such contracts, it appears that the courts received it. At the same time they admitted the’ testimony of Indian infidels, believers in a God who avenges wrong-doing.

[36] 34 STAT. 618 (1906), 28 U. S. C. 631 (1926); see ROSE, FEDERAL JURISDICTION (3d ed. 1926) 523.

[37] A moot case has been suggested by Charles G. Baldwin as to the incompetence of witnesses, because of lack of belief in a Supreme Being who avenges wrong-doing, to make affidavits for the following purposes: to become a registered voter, to take out a patent, to become naturalized as a citizen, to obtain a passport, to be a candidate in a primary, to enlist in the army, navy, or militia, to file income tax returns, etc. See The Baltimore Daily Record, Feb. 4, 1930. But these are privileged under the federal rules, and they are referable to state law only where as indicated supra note 36, the federal officer is bound to enforce the state disqualification.

[38] Supra note 35.

[39] State v. Jackson, 156 Iowa 588, 137 N. W. 1034 (1912).

[40] MARYLAND CONSTITUTION (1867) art. 36. This was construed against disbelievers in State v. Mercer, 101 Md. 535, 61 Atl. 220 (1905). In order to accommodate the Universalists the belief as to punishment in a future world was abandoned in favor of belief in punishment inflicted by God in this life. But an old Connecticut case held otherwise. Atwood v. Welton, 7 Conn. 66, 74 (1828) (citing Mr. Justice Story and Curtiss v. Strong, infra note 52).

[41] 3 Gratt. 632 (Va. 1846).

[42] Bush v. Comm., 80 Ky. 244 (1882).

[43] Percey v. Powers, 51 N. J. L. 432, 17 Atl. 969 (1889).

[44] 49 N. C. 25 (1856).

[45] Ibid. In the course of the opinion in Perry’s case, supra note 41, at 643, Judge Scott said: "The enforcement of the high test contended for, of a belief in future rewards and punishments, might present the spectacle of a Christian man found guilty by an Infidel jury sentenced by an unbelieving Judge, and denied mercy by an Atheist Governor; and all because of the rejection of a Christian witness; for all Christians do not believe in future punishments."

[46] Perry v. Stewart, 2 Har., 37 (Del. 1835).

[47] State v. Williams, 111 La. 179, 35 So. 505 (1903).

[48] 1 & 2 VICT. c. 105, later reproduced in the British Oaths Act of 1888, 51 & 52 VICT. c. 46, as follows: "Every person upon’ objecting to being sworn and stating as the ground of such objection that he has no religious belief, or that the taking of an oath is contrary to his religious belief, shall be permitted to make his solemn affirmation instead of taking an oath."

[49] Li Sing v. United States, 180 U. S. 486, 21 Sup. Ct. 449 (1900).

[50] Maden v. Catanach, 7 H. & N. 360 (1861); cf. Lee v. Missouri R. R., 67 Kan. 402, 73 Pac. 110 (1903); Hayden v. Hayden, 107 Neb. 806, 186 N.W. 972 (1922).

[51] For citations and a full summary of the religious disqualifications in the different states, see Notes (1898) 42 L. R. A. 568; (1909) 23 L. R. A.(N. S.) 1023. See also 28 R. C L. 41. The burden of proof of a religious disqualification is on the objecting party. Arnd v. Amling, 53 Md. 192 (1879); DuPuy v. Terminal, 82 Md. 443, 34 Atl. 462 (1896).

[52] 4 Day 51 (Conn. 1809). This case was overruled due to a constitutional change in Ruocco v. Logiocco, 104 Conn. 585, 134 Atl. 73 (1926). Cf. State v. Mercer, supra note 40.

[53] Harding v. Harding, 18 Pa. 340 (1852).

[54] Percey v. Powers, supra note 43; Hronek v. People, 134 Ill. 139, 24 N.E. 861 (1890).

[55] Supra note 43; cf. Brink v. Stratton, 176 N. Y. 150, 68 N. E. 148 (1903) (denying the right even to question such witness).

[56] State v. Mercer, supra note 40.


  1. [Introduction]
  2. Christianity Part of Our Law
  3. Are Oaths of Believers Alone Believable?
  4. NEXT: Official Oaths Founded on Christian Belief
  5. Compelling Marriage in the Face of the Church
  6. Sunday Laws
  7. Blasphemy
  8. Bible Reading in the Schools


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