The affirmation alternative: A religious case for atheist oaths

May 1, 2019 by

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On March 30, Clarence Thomas, Associate Justice of the U.S. Supreme Court, spoke at Pepperdine University School of Law’s annual dinner. He reflected broadly on the relationship between faith and judicial duty, drawing from his own experiences and also from past conversations with his former colleague, the late Antonin Scalia.

During a brief aside, Justice Thomas questioned the meaning of oaths made by atheists:

“As an aside, I think it’s really interesting that people in a profession where we all take an oath, that they would look at people who have strong faith as somehow not good people when, if you’re an atheist, what does an oath mean? If you are a Christian, and you believe in God, what does an oath mean? You know, what do you say at the end of it? ‘So help me God.’ And you have taken an oath to God, and, as Mother Theresa said, it’s between you and God. So, you have given your word . . . when you give your word to God, is that special? And I think if you are faithful, you think it is special, and you work doubly hard to make sure you live up to it. . . . Not only doesn’t it [faith] interfere in any way, it actually enhances your view of the oath.”

It is not difficult to understand what Justice Thomas means. If someone swears on something he does not believe exists, then there is good cause to question the trustworthiness of whatever was promised. However, the concern with these comments, ironically, has to do with oathtaking in colonial America and one of Congress’s earliest interpretations of the Constitution.

Oaths were common in Europe and the new world, but this form of commitment ran perpendicular to an interpretation of scripture held by Quakers and Anabaptists whose communities were thriving in 18th century America. These groups read Jesus’s words in Matt. 5:33-37 as a direct prohibition to the practice of giving any pledge other than a simple “yes” or “no.” They feared that the use of such additional qualification, like “I swear” or “so help me God,” created an assumption that statements without such qualification were dishonest.

Obviously, this opposition to oaths posed an immediate problem for local governments, which were quick to develop solutions. Professor Thomas Kidd, an historian of early American religion and politics at Baylor University, points out that “many American colonies had begun to enact exemptions for Quakers so they would not have to swear oaths.” Long before Justice Brandeis coined the phrase, the states, it seems, already proved to be a helpful “laboratory of democracy” for the new general government. In 1789, the same act of Congress which created the bench on which Justice Thomas now serves also enshrined nationwide accommodation for non-oath commitments. According to Section 7 of the Judiciary Act, judges may swear or affirm their oaths (emphasis added), and while the oath ends with the petition, “so help me God,” the act says that the same petition “shall be omitted in all cases where an affirmation is admitted instead of an oath.”

In this way, Congress’s earliest definition of our national judiciary recognized an affirmation alternative for those whose commitments could not be valued according to the currency of traditional oath-making ceremonies. I am particularly grateful for this prescient wording because of my own upbringing within an Anabaptist faith community. This provision meant that my ancestors, who had already lived in Pennsylvania decades before President Washington signed the act, were not excluded from serving at the highest levels of our nation’s legal system. Moreover, in paving the way for non-swearing Quaker and Anabaptist Christians to serve as jurists, allowing commitments in the form of affirmations also meant that non-religious citizens could also confirm their willingness to fulfill judicial duties without swearing to an unacknowledged deity.

While it would be historically irresponsible and too simplistic to read 21st century notions of atheism into this 18th century statute, it would also be inaccurate to miss the obvious attempt of our nation’s founders to create opportunities for those from a variety of belief systems to participate in the important work of our nation’s judiciary.

Justice Thomas is not wrong to indicate that faith can play an important role in compelling a judge to serve dutifully in his important role in our nation’s courts, but based on the existence of the affirmation alternative as early as 1789 it would also be improper to question the meaning of those same commitments made by judges without such faith.

M. Ryan Groff is a current dean’s scholar at New England Law | Boston, and holds a master of arts in theology degree from Gordon-Conwell Theological Seminary. He grew up at Blainsport Mennonite Church in Lancaster Mennonite Conference and now lives with his family in Massachusetts where he is firm administrator and paralegal at Knudsen Burbridge, P.C. This reflection does not represent the position of any of the preceding institutions. This post originally appeared at interdependentcourts.com.

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