In the recent custody matter of Musaitef v. Musaitef, Court of Common Pleas, Philadelphia County, Commonwealth of Pennsylvania, Case No.: 0c1202189, the Judge ruled that a Muslim woman may not swear on a Koran while taking the oath before testifying at a hearing.
At a hearing in the Musaitef matter, the Mother, a Muslim, requested that she be sworn in by putting her hand on a Koran instead of a Christian Bible when taking the oath before testifying. The Father in the matter, who interestingly is also a Muslim, objected to the use of the Koran, arguing at the hearing and subsequently in a brief (discussed below), that it served as witness intimidation in that a Koran is not statutorily permitted to be used for administering oaths at a hearing. The Mother remained resolute in wanting to use the Koran so the Judge asked the parties to brief the issue of whether the use of a Koran for swearing in at a hearing is legally permissible.
Father first argued that Mother’s request was a pretext for witness intimidation. Evidently, the alleged implication from Mother was that Father’s Islamic faith included the belief that oaths taken on religious books outside of Muslim belief would not bind the speaker to tell the truth. Therefore, the witness intimidation was Mother’s subtle suggestion that Father’s use of a Christian Bible instead of a Koran for his oath, as contrasted by her insistence on using a Koran, indicated that Father was going to lie during his testimony.
The primary arguments between the parties centered on 42 Pa.C.S. Section 5901 which states the following: “(a) General rule. — Every witness, before giving any testimony shall take an oath in the usual or common form, by laying the hand upon an open copy of the Holy Bible, or by lifting up the right hand and pronouncing or assenting to the following words: ‘I, A. B., do swear by Almighty God, the searcher of all hearts, that I will[_______], and that as I shall answer to God at the last great day.’ Which oath so taken by persons who conscientiously refuse to take an oath in the common form shall be deemed and taken in law to have the same effect as an oath taken in common form.
(b) Right to affirm.–The affirmation may be administered in any judicial proceeding instead of the oath, and shall have the same effect and consequences, and any witness who desires to affirm shall be permitted to do so.”
Father argued that the statutory language is plain, clear, and unambiguous: it allows for two options for taking an oath before testifying: (1) swearing on a Bible or (2) affirmation. It simply does not provide for the use of a Koran. Therefore, according to Father, if Mother does not want to use a Bible for her oath, she can simply affirm. Further, Father also argued that as both parties will be using a language interpreter, who used the statutory form for his oath, it would create confusion if different and innovative non-statutory oaths were used for one party but not others. Father pointed out that 42 Pa.C.S. Section 5902 prohibits inquiry into Mother’s religious beliefs in order to assess her credibility, so he cannot explore with her the potential religious and/or other implications for using a Koran over a Bible for the purposes of taking an oath at a hearing.
Mother’s brief, by contrast, focused on religious liberty. Mother asserted that 42 Pa.C.S. Section 5901 must be read broadly enough to allow for the use of the Koran, otherwise it unconstitutionally prefers Christianity over other religions in violation of the religion clauses of the First Amendment to the U.S. Constitution. Mother pointed out that the affirmation option in the statute noted above is provided for people who do not wish to invoke the Christian God or Bible and/or employ religion for the oath and/or object to taking “an oath” (as opposed “affirming”). The obvious purpose of the oath, per Mother, is to impose the significant nature of the proceedings on a witness and to ensure the truth of testimony. As a corollary, per Mother, a way to impose the significant nature of the proceedings onto a witness is to allow that witness to swear upon something that witness respects and takes seriously, such as her preferred religious text; indeed, why else would the Bible be required for the oath if it did not reflect the prevailing significance of Christian beliefs when the statute was written and how they relate to not bearing false witness? From Mother’s point of view, if Christians receive the benefit of, and respect for, their religious beliefs when taking the oath on their Bible, ought not other religionists, in this case Muslims, receive the same benefit and respect and be permitted to take an oath on their Koran?
Due to the dearth of case law in Pennsylvania on this issue, Mother relied upon case law in North Carolina which ruled that oath statutes are flexible enough to allow for the use of religious books other than the Bible, per the religious preference of the witness, in order serve as a mechanism to ensure honesty for a witness’ testimony (it should be noted that the language of the North Carolina oath statute is vaguer than 42 Pa.C.S. Section 5901 and, therefore, more able to be read and understood more broadly).
Mother also argued that understanding 42 Pa.C.S. Section 5901 as restricting oaths to exclusively the Bible (or non-religious affirmation) is unconstitutional. Mother pointed out that by allowing for the use of the Bible but no other religious book for an oath, Pennsylvania impermissibly favors Christianity over other religions and, therefore, serves as an unconstitutional endorsement of Christianity over other religions.
The Court held a subsequent hearing and ruled that the precise language of the statute applies: either Mother is to take her oath on the Christian Bible or non-religiously affirm. The Court made no allowances for other religions, for the potential to understand 42 Pa.C.S. Section 5901 as merely requiring a religious book weighty enough to persuade a witness to testify truthfully (as opposed to strictly a Bible), and/or the potential Constitutional issues described above.
As an aside, there seems to be no discussion in the case of the curious final sentence of 42 Pa.C.S. Section 5901(a): “[w]hich oath so taken by persons who conscientiously refuse to take an oath in the common form shall be deemed and taken in law to have the same effect as an oath taken in common form.” This sentence would seem to imply that the statute ought to be read expansively as it appears to allow another form, other than the “common form”, to have the same effect as the common form. Unfortunately, it does not appear that this angle was explored in the case.
This case is still in progress and it will be interesting to see how it develops.
Originally published on December 23, 2014 in The Legal Intelligencer which can be seen here and reprinted by the Pennsylvania Family Lawyer in its Volume 37, Issue No.: 1, March 2015 edition which can be seen here.
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