I was watching a Kannada soap opera last night (because I have apparently become an elderly Indian woman as of late) and a scene in a courtroom caught my attention. One of the characters was being questioned, and before she gave her testimony she was asked to declare her intention to speak the truth.
ಸತ್ಯವನ್ನು ಹೇಳುತ್ತೇನೆ , ಸತ್ಯವನಲ್ಲದೆ ಬೇರೆ ಏನು ಹೇಳುವುದಿಲ್ಲ , ನಾ ಹೇಳುವುದೆಲ್ಲ ಸತ್ಯ |
satyavannu hēḷuttēne, satyavanallade bērēnu hēḷuvudilla, nānu hēḷuvudella satya
I will speak the truth; I will not speak anything that isn’t true; everything I say is the truth.
That segment caught my attention for a couple of reasons.

First, that the declaration was different from our familiar U.S. oath, “I swear to tell the truth, the whole truth, and nothing but the truth, so help me God.”
But of course it wouldn’t be the same. While an objectively large number of people in India use English as a second or third language (some 125 million according to the latest census, nearly half the population of the United States), that still only comes out to about 10 or 11 percent of the country’s population.
It would be fundamentally unjust for court proceedings to be carried out in a language with which the parties were unfamiliar — even though that probably happens regularly, since there are only (!) 22 scheduled languages of India and hundreds more unrecognized dialects and minority languages.
So, okay, the witness’s declaration was taken in Kannada. The action takes place in the state of Karnataka, where the two official languages are Kannada and English, so a witness could plausibly use either language. That makes sense. (Plus, it was a Kannada soap.)
Another thing that caught my attention was that there was no religious sentiment expressed in the declaration. India is a highly religious country, with upwards of three-fourths of the country declaring that religion is important to them. In the U.S., that rate is a little lower, at 65%, but the most famous form of our witness declaration here does explicitly invoke God — “… so help me God,” a line that is usually delivered, scripted, by court bailiffs, along with a Bible.
In American law, an oath specifically references God. The OED agrees: an oath is specifically a type of declaration that “invokes God, a god, or other object of reverence.” Those who don’t want to make an oath instead provide an “affirmation,” which starts with “I affirm…” instead of “I swear…” and omits the reference to God. Affirming is referenced four times in the U.S. Constitution as an alternative to swearing, and Britain has allowed affirmations instead of swearing since 1695.
Regardless of whether you swear or affirm, if you lie, you can be charged with perjury, a serious crime.

President Obama
Other declarations abroad
In Britain, oaths are given slightly differently from the American version:
I swear by [Almighty God/Name of God/name of the holy scripture] that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.
Affirmations in Britain require several more hedges than an oath, perhaps because of a cultural suspicion against people who affirm rather than swear: “I swear to tell the truth…” is such a well-known phrase that any deviance from that — regardless of how legal it is — can be regarded with suspicion.
In Britain, one doesn’t simply “affirm” — one solemnly and sincerely and truly declares and affirms:
I do solemnly and sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.
In the U.S., one can simply affirm. Atheist and former Governor of California Culbert Olson, in office from 1939 to 1943, famously said to California Supreme Court Justice Waste, “God [can't] help me at all, and there isn’t any such person.” He chose to say “I will affirm,” rather than “I swear” during his oath of office.
According to one of my friends in France (hi, Benoît!), the common declaration given by witnesses in France is:
Je jure de parler sans haine et sans crainte, de dire toute la vérité, rien que la vérité.
I swear to speak without anger and without fear, to say the entire truth, nothing but the truth.
My friend writes, “Because France is a non-religious country, there isn’t any trace of God in any institutions.” I’m sure truth is more nuanced than that, but the French people are certainly less religious than the United States. But the word – jurer – used in the oath is similar to “swear.” Jurer usually carries the same valence as the English “swear” (in that it has religious undertones) and it also has the same secondary meaning of “to curse.” But jurer can also translate to “certify” or “pledge,” words that carry no religious undertones in English.
Another one of my friends, a walking encyclopedia of Islam (hi, Ahmad!), gave me an overview of Muslim declarations of truthfulness. In many majority-Muslim countries, cases that are tried under Shari’ah law (today, usually family law disputes) require an oath to be given by witnesses. However, unlike Western civil courts, the oath is traditionally given after testimony is given. Once the judge collects all the testimony, he asks the parties to swear on the Qur’an or by God that what they have said is true, or else bringing upon them divine wrath. (Incidentally, this traditional oath appeared in the recent Golden Globe-winning Iranian film A Separation, which I highly recommend.)
Back home
The U.S. government is explicitly areligious, but a profession of faith is built directly into the common understanding of court procedure. Of course, there’s no law requiring nonbelievers to swear. But it’s undeniably unfair when free deviance from a set religious phrase, scripted and delivered by a court’s bailiff, could color a jury or judge’s perception of a witness. We shouldn’t be suspicious of someone who affirms more than someone who swears, but many of us are.
Eliminating “I swear…” probably won’t help, but maybe raising the profile of “I affirm…” as an option for nonbelievers (and even believers who object to swearing in a civil setting) will help make the process fairer.
John Stokes 2:40 pm on February 7, 2012 Permalink |
“Had Marilyn Monroe’s film been called ‘How to Register a Domestic Partnership with a Millionaire,’ it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.”
-Judge Reinhardt putting the point slightly differently
johnwcowan 2:57 pm on February 7, 2012 Permalink |
Note that there is also an equivocation on married. In Romer v. Evans, gay people were denied certain rights tout court. But, as the anti-marriage-equality folks are forever pointing out, no adult in America is denied the right to marry as such — only the right to marry certain other adults.
I hope that when the Supremes take this up, as they inevitably must either now or later, that they will look back to Loving v. Virginia, which also purported to allow everyone the right to marry, just not people of another color. The Court struck that one down, and just before Mildred Loving died in 2008, she expressed herself on the subject of gay marriage: she was for it.
John Stokes 3:25 pm on February 7, 2012 Permalink |
Good point. The biggest problem with relying on Loving is that it was a race case and thus triggered strict scrutiny. Sexual orientation only gets rationality review. So it’s not clear that Loving would help on the Equal Protection front.
But there’s still some language in Loving that could buttress the Due Process claims. “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
This is reminiscent of the language in right-to-privacy cases, e.g. Griswold, Roe, and Casey, saying the state can’t make reproductive decisions for you (the freedom to make these decisions is a fundamental right, so laws that limit that right are put under strict scrutiny). This got pushed farther in Romer and Lawrence, where the Court said the state can’t make decisions about private sexual activity/partners. So the Loving language might be employed to extend the claim to decisions about who to marry — saying that this, too, is a fundamental right and thus gets analyzed under strict scrutiny.
John Stokes 10:45 pm on February 7, 2012 Permalink |
Meant to post this earlier, another good point from a close friend: The whole reason that Prop 8 was passed in the first place was that its proponents thought the word “marriage” was special to them. If the point were the rights associated with the word, they would either have done nothing or passed an initiative that affected the substantive rights of same-sex couples. Instead, the focus was on whether or not same-sex couples could use the term itself — an important difference.
Laura Heymann 2:52 pm on February 8, 2012 Permalink |
Shout-out from the Economist: http://www.economist.com/blogs/johnson/2012/02/gay-marriage