Tuesday, January 16, 2007, 6:07 PM

COA Issues Expansive Declaratory Judgment Act Decision In Challenge To Courtroom Oath

Today the COA applied the Declaratory Judgment Act in a fairly broad manner, reversing a superior court decision (by Judge Donald Stephens). The case is ACLU v. State.

In 2003 Syidah Matteen, a Muslim woman, appeared as a witness in state court. She asked that her oath be sworn on the Quran. Her request was denied, and she refused to swear on the Christian Bible. See G.S. 11-2 (administration of oaths). Instead she chose to affirm without a religious text. See G.S. 11-4 (affirmation in lieu of oath). More than two years later, she sued the State, seeking a declaratory judgment that she had a right under 11-2 to swear on the Quran and, if not, that G.S. 11-2 is unconstitutional. Matteen acknowledged she hadn't sustained damages; she wasn't seeking damages of any kind. Instead she was "seeking justice" based on the "insult to her." She contended that, insofar as those in the courtroom perceived her affirmation as a sign that she had no religious faith, that was insulting to her.

As a side note, this insult contention -- that others in the courtroom might perceive that she has no religious faith -- seems misplaced, because there's a separate statute that gives one a right to appeal to God as a witness as an alternative to swearing on the Bible or taking an oath by affirmation. G.S. 11-3 provides: "When the person to be sworn shall be conscientiously scrupulous of taking a book oath in manner aforesaid, . . . the oath required shall be administered in the following manner, namely: He shall stand with his right hand lifted up towards heaven, in token of his solemn appeal to the Supreme God, and also in token that if he should swerve from the truth he would draw down the vengeance of heaven upon his head, and shall introduce the intended oath with these words, namely: I, A.B., do appeal to God, as a witness of the truth and the avenger of falsehood, as I shall answer the same at the great day of judgment, when the secrets of all hearts shall be known (etc., as the words of the oath may be)." Thus, with respect to a witness who has a religious faith and is concerned that others in the courtroom may perceive she does not, she may dispel that perception by taking the alternative "appeal to God" oath in G.S. 11-3. (Of course, if the witness is an atheist, she wouldn't opt for that oath; she'd choose affirmation. But presumably an atheist wouldn't feel insulted by another's perception that she has no religious faith, and, in any event, the only way to cure that problem would be to strike any religious reference or text from the oath and to prevent any witnesses and jurors from appealing to God or religion.)

Anyhow, the State argued that Matteen and the ACLU were seeking a purely advisory opinion. The superior court held that the suit presented no justiciable controversy.

The COA reversed, holding that litigation would be "unavoidable" (the prerequisite for bringing suit under the Declaratory Judgment Act) since Matteen may be called as a witness or juror again in the future. In a similar vein, the COA also held that the ACLU itself presented a justiciable controversy to sue the State, since members of the ACLU who are religious but not Christian and who would prefer to swear on a religious text may be called as jurors or witnesses in the future.

(For another recent expansive decision under the Declaratory Judgment Act, see Goldston v. State (NC 2006), where Chief Justice Parker, in dissent, accused the majority of rendering an advisory opinion by allowing a declaratory judgment action to proceed. In that case taxpayers were seeking a mere declaration (no redress in the form of damages or injunctive relief) that the Governor and the General Assembly violated the Constitution in the past by transferring money from the Highway Trust Fund to the General Fund.)

Last month the Raleigh N&O, citing this oath case, had an editorial in favor of expanding G.S. 11-2 to include the Quran as a religious text, arguing that "North Carolina needs to make a change." If Matteen and the ACLU are successful on the merits on remand, the result of this challenge may be this: taxpayer funds may have to be used to purchase a lot of Qurans to fill the courtrooms of this State. And not only Qurans: the ACLU contends that other religious texts, including the Bhagavad-Gita (the sacred text of the majority of Hindu traditions), must be made available for witnesses and jurors who wish to swear on them.

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