Muslim judge in New York takes oath on the Koran

|The Volokh Conspiracy |

Geo.TV (Pakistan), Christian News Network and other news sources report that the recently elected New York trial court judge Carolyn Walker-Diallo was sworn in on the Koran; you can see a video of the swearing-in ceremony here. Can someone be sworn in on the Koran, rather than the Bible?

Not only can she, but she should. As I argued in the National Review in 2006, when Rep. Keith Ellison (D-Minn.) was sworn in on the Koran, an oath of office is a religious ritual, both in its origins and its use by the devout today. The oath invokes God as a witness to one's promise, as a means of making the promise more weighty on the oath-taker's conscience.

This is why, for instance, the Federal Rules of Evidence, dealing with the related subject of the courtroom oath, state, "Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so." If you want the oath to be maximally effective in awakening the oathtaker's conscience and impressing her mind with the duty to abide by the oath, then you want the oathtaker to swear on the book that matters to her, not on the book that matters to you. Jewish officeholders, for instance, are often sworn in on the Jewish scriptures; a Hindu officeholder was recently sworn in on the Bhagavad Gita.

One twist, for the picky: If you listen to the video, you can hear that the judge is asked to "affirm," and she does say that she is affirming. Traditionally, "affirming" has meant taking the equivalent of an oath, but without invoking God—the Constitution expressly permits affirmations as alternatives to oaths, for the benefit of Quakers and other groups that read Matthew 5:33-37 as forbidding oaths. Presidents Franklin Pierce and Herbert Hoover (a Quaker) affirmed rather than swearing. Nixon, also a Quaker, did swear, apparently on two Bibles. (This didn't seem to help.) Many nonreligious people take advantage of that option as well.

But here the procedure was a bit of a hybrid: Judge Walker-Diallo affirmed instead of swearing (I don't know whether this was because of her preference or because this is New York practice), but invoked God by placing her hand on the Koran. In any event, if she decided to use a holy book, the holy book that makes the ceremony feel especially binding to her is the right book to use.