Many times North Carolina law has required people to prove their words or actions with a solemn official statement when, for example, testifying in court or assuming public office. Such official statements must be given by a solemn oath or by affirmation. First passed in 1777, the North Carolina oath statute describes oaths as “most solemn appeals to Almighty God,” and the affiant is declared to invoke divine “vengeance” on himself if he lies. The proper format for oaths and the issue of sworn testimony eligibility have been contentious issues in the history of the Tar Heel State.
Throughout the history of oaths in North Carolina, two issues have routinely been debated: the form of oaths and court testimony eligibility. Although all oaths end with “so help me God," the North Carolina General Statutes specify two forms. The first requires one to lay his or her hand on the “Holy Scriptures” (formerly the “Holy Evangelists”) while reciting the oath (N.C.G.S. 11-2). The second form of oath, the appeal, involves invoking God and the Last Judgment, while the affiant holds up his right hand (N.C.G.S. 11-3). North Carolina law concerning testimony eligibility was influenced heavily by English jurisprudence. The English jurist Edward Coke (1552–1634) had suggested in the early seventeenth century that only Christians had standing in court. In contrast, England’s Court of Chancery in Omichund v. Barker (1744) held that, to be a witness in court, all one needed to believe was in the existence of a God who punished wrongdoers.
A dispute arose in nineteenth-century America concerning the proper application of the Omichund precedent. Several cases involved the testimony of universalists, who believed that everyone goes to heaven after death and that divine punishment for wrongdoers takes place before death. Most nineteenth-century state high courts dealing with the issue applied the more lenient interpretation that allowed universalists to testify. In Shaw v. Moore (1856), the North Carolina Supreme Court went with the majority of states and held that universalists were entitled to take oaths as witnesses in court under the Omichund rule.
The Shaw court also discussed the state’s oath statute, which listed only an oath on the “Holy Evangelists” and an oath invoking the Last Judgment. These two were not the sole means of swearing permitted by the law, said the Court. Affiants could use other forms of oaths in accordance with the Omichund precedent. Any other result would contravene the state Constitution and “the progress of the age.” Under the Shaw and Omichund decisions, the only religious requirement for testifying in court was that the affiant believe in a God who punished wrongdoers. Later, the state high court clarified that when the affiant did not object, the statutory form was preferred. Minor variations in the wording did not invalidate the proceedings, and a person taking a statutory oath was presumed to have done so properly.
The common-law rule, however, still disqualified people from taking the oath as witnesses if they were atheists or if they did not believe that God punished wrongdoers. If the trial court found that the witness was religiously qualified, however, appellate courts could not overturn the decision. Applying this rule, the North Carolina Supreme Court in 1914 upheld a trial judge’s decision to allow two children to testify–although when questioned they did not answer that God would punish them for lying. The high court ruled that the two children had given satisfactory answers regarding their duty to tell the truth and had revealed their knowledge that lying would be punished.
During much of the twentieth-century, the debate continued. Writing in the 1929 North Carolina Law Review, Attorney J. Crawford Biggs argued that, according to the state’s laws, atheists were unqualified to be sworn in as witnesses, because they did not believe in an avenging God. The likelihood of courts changing the law seemed slim, so Biggs suggested that the legislature should do so. The elected body did not act accordingly, but subsequent developments in the U.S. Supreme Court led to a reconsideration of the oath statute. The U.S. Supreme Court has declared that the First Amendment requires strict separation of church and state, as well as equal rights for atheists. In the 1980s, a court challenge to North Carolina’s oath and affirmation statute prompted some legislative revision.
It was not until 1985, when the General Statutes Commission, responsible for updating state laws, recommended legislative changes to the oath statute. The proposed changes would have retained the “so help me God” language in oaths, but would have deleted the preambular language in the statute declaring that oaths are backed by divine sanctions. The proposed statute would also have allowed the affiant to decide whether he swore on the Bible or only raised his right hand. The oath of allegiance taken by public officials was broadened to include a promise to support the U.S. Constitution, in addition to the previously required pledge of allegiance to North Carolina.
A bill embodying the General Statute Commission’s recommendations, HB 900, was introduced in 1985. The bill passed the House in its original form, but the Senate modified it. The preambular language about oaths having divine sanction was restored. So, too, were the provisions for two forms of oath: swearing on the Bible and appealing to God. The phrase “Holy Evangelists of Almighty God” was changed to “Holy Scriptures.” In this form, the bill passed the legislature.
Another dispute over the oath statutes arose in 2006. Could religious minorities swear on their respective holy books, or were they limited to the three statutory options of swearing on the Christian Bible, appealing to God without using a religious text, or making an affirmation? The American Civil Liberties Union of North Carolina filed a lawsuit over this issue, prompted by news about officials in some counties refusing to let Muslims swear on the Koran. In January 2007, the state Court of Appeals allowed the ACLU-NC to proceed with its lawsuit, without saying whether the group’s legal claims were valid.
On May 24, 2007, Wake County Superior Court Judge Paul Ridgeway upheld North Carolina’s oath statutes and ruled that the term "Holy Scriptures" refers only to the Christian Bible. At the same time, Judge Ridgeway declared that the common law and the Shaw v. Moore precedent allow witnesses to be sworn in whatever manner is best suited to their consciences (including oaths on other holy books, when appropriate).
J. Crawford Biggs, “Religious Belief as Qualification of A Witness,” North Carolina Law Review (1929-19300 VIII: 31-39; Daniel Blau, “Holy Scriptures and Unholy Strictures: Why the Enforcement of a Religious Orthodoxy in North Carolina Demands a More Refined Establishment Clause Analysis of Courtroom Oaths,” First Amendment Law Review (2006) 4: 223-265; Comment, “A Reconsideration of the Sworn Testimony Requirement: Securing Truth in the Twentieth Century,” Michigan Law Review (1977): 1681-1707; Documents relating to the 1985 revision of the oath and affirmation statutes, General Statutes Commission papers, North Carolina State Archives, Raleigh, North Carolina; Nadine Farid, “Oath and Affirmation in the Court: Thoughts on the Power of a Sworn Promise,” New England Law Review (2006): 40: 555-561; Ireland Law Reform Commission, Report on Oaths and Affirmations (Dublin, 1990); Paul W. Kaufman, “Disbelieving Nonbelievers: Atheism, Competence, and Credibility in the Turn of the Century American Courtroom,” Yale Law Journal (2003) 15: 395-433; Maximilian Longley (as Eric Longley), “Oaths and Affirmations in Anglo-American History,” Sewanee Theological Review (1999) 43:1: 61-77.