Monday, May 20, 2019

HAGUE v. CANCER RELIEF & RESEARCH INSTITUTE [1939]

HAGUE v. CANCER RELIEF & RESEARCH INSTITUTE [1939] MJ. No. 19 [1939]4D.L.R.19l

Manitoba King's Bench Dysart J. Judgment: July 11, 1939 (36 paras.)

Counsel: W D. Lawrence, K.C. and S. Freedman, for plaintiff W C. Hamilton, K.C. and H Adamson, for defendant.
1 DYSART J.:--

Ths action is brought by a practicing physician and surgeon to compel the defendant to furnish him from time to time with radium and its emanations for use in his treatment of cancer among his patients.

2 Briefly, the plaintiff claims that the defendant is a corporation incorporated by an Act of the Legislature of this Province for the purposes, inter alia, of acquiring radium and distributing it and its emanations to qualified physicians for use in their treatment of cancer; that the defendant has accordingly acquired a supply of radium ample for these purposes; that the plaintiff is a qualified physician and is entitled to supplies of that radium, and in fact did so get supplies until January, 1938, but that since that date he has been wrongfully and unfairly refused supplies by the defendant; and that he has thereby been greatly injured in his professional practice, reputation and income. He asks for damages and other relief~
chiefly a mandamus to compel the defendant to place his name on the list of physicians to whom it will supply radium needed for treatment of patients.

 3 The defendant takes the position that it has discretion and right to supply or withhold its radium; that in discontinuing supplies to plaintiff it acted in good faith and in its honest belief that the plaintiff is not qualified to use radium It maintains it cannot be compelled by mandamus to meet plaintiffs demands, but that the most the Court can do is to direct the defendant to reconsider the plaintiffs application

 4 Admittedly, the plaintiffs rights, if any, are not founded upon any contract with the defendant, nor upon any proprietary interest in the radium In so far as they exist, his rights are to be found in some statutory duty owing to him by the defendant by reason of the provisions of the Cancer Relief Act, 1930 (Man.), c. 1, as amended by c. 5 of  l936. 5

Before proceeding to deal with this case upon its ''merits,1I I feel that I must point out, as I did in the early stages of the trial that the defendant seems to have no corporate existence whatever. If this semblance of unreality proves to be the fact, the difficulties of disposing of this action satisfactorily will be greatly increased. At the request of counsel for both parties, the trial proceeded subject to this uncertainty. But the difficulties must now be met. 6 Section 2 of the Cancer Relief Act, 1930, reads: 'There is hereby created a corporation to be called 'The Cancer Relief and Research Institute' (hereinafter called 'the Institute'). The Institute shall be a body corporate and politic, and have perpetual succession, with a corporate seal and may sue and be sued, plead and be imp leaded in all Courts whatsoever. II

7 Nothing more is to be found in the Act respecting the creation or the constitution of the Institute. No corporation or members are named or indicated. Unlike other corporations, this Institute is not composed of any constituent elements. Objects, purposes and powers are ascribed to it, but even those do not include power to appoint any governing or managing body of trustees or directors, nor officers, agents or servants. It seems to be nothing more than a name. In itself of itself and by itself it is utterly powerless and helpless.

 8 But the Act sets up an independent body to manage and conduct the affairs of the Institute. Section 3 provides that: 'The Institute shall be governed and managed by a Board of Trustees (hereinafter called 'the Board');11 and s. 8 adds: 'The property, business and affairs of the Institute shall be under the charge, control and management of the Board. II

 9 The powers of this Board are wide enough to enable it to do practically anything that falls within the objects and purposes of the Institute. But the Board is entirely separate and distinct from the Institute. Its member trustees are all to be appointed and have always been appointed by designated authorities and organizations that are wholly unrelated to the Institute. So that this manager of the Institute's affairs is in no way answerable to the Institute for its membership, term of office, duties, or responsibilities.

10 In this set up, it might be thought that the Board is in effect the Institute. I would gladly so treat it, if the Act permitted, but the Act precludes this course. It might also be considered that the Board should be added as a party defendant--at least alternatively--but although I suggested that course to counsel the suggestion was respectfully declined. I am therefore driven to examine furher into the status of the Institute to see how far it can be affected by any judgment or order that might be pronounced in this case; and how far, if at all such judgment or order might bind the Board or its members, none of whom are parties to these proceedings.

11 This inquiry is necessary because of the nature of the judgment the plaintiff seeks. It is not merely declaratory--it is mainly mandatory. But if there is no real commandable defendant before the Court, such a judgment, even if granted, would be of less effect even than "sounding brass or a tinkling cymbal." That would be so unless the Board, of its own accord, would choose to honour the judgment in the name of the Institute. I do not think that the Board could be compelled in this action to obey an order directed against the Institute.

s 12 The Institute, by the Act, is said to be " ... created a corporation ... a body corporate and politic." (s. 2) It is therefore a corporation or nothing. What is a corporation? According to our system of law, a corporation is a group or series of persons which by a legal fiction is regarded and treated as a person itself It is a legal entity composed of persons. In law "a person" is any being that is capable of having rights and duties, and is confined to that. Persons are of two classes only --natural persons and legal persons. A natural person is a human being that has the capacity for rights or duties. A legal person is anything to which the law gives a legal or fictitious existence and personality, with capacity for rights and duties. The only legal person known to our law is the corporation--the body corporate.

13 There are other groups or associations of natural persons which the statute law recognizes, and endows with some personality and some rights or duties, such as registered trade unions, but these are not corporations. In any event they are composed of persons.

14 It must follow that there can be no corporation, that is no legal person, unless and until there is first a group or series of natural persons to compose or constitute the corporation, because although later corporations may be formed of existing corporations, these component corporations in the first instance must consist exclusively of natural persons.

15 Authority for these propositions maybe found in Sahond on Jurisprudence, 9th ed., pp. 416-435; 8 Hals. (2nd ed.), especially at pp. 1-4, and 18-23; and Dillon on Corporations, 5th ed., c. 2; and many others.

16 This Institute is composed of nothing. It is based on nothing. It is nothing. While we must concede to the Legislature of this Province great powers in creating corporations in certain fields, it can exercise its creative powers only upon material out of which corporations can be made. Without such material it cannot create a corporation. It may, like the poet, "give to airy nothing a local habitation and a name," but it cannot give to nothingness a corporate personality with corporate powers. It cannot do the impossible. The purported creation of the Institute is merely an attempt at the impossible.

17 And I may add that this Cancer Relief Act is the only provincial Act that can be found in which this sort of incorporation is attempted. In every other Act creating a corporation or board or commission or institute--and I have examined scores of them--the body so created is expressly declared to "consist of' or to be "composed of' persons. The attempt in this instance would seem to be due less to delberate design than to some oversight.

18 But the Act declares, in said s. 2, that the ''Institute'' may "be sued ... and be impleaded." If that is so, any such suit can be brought home to the Institute only through its Board of Trustees. And that is what has taken place, at least in form The Board has accepted service of the statement of claim, has filed a statement of defence in the name of the Institute, and has stoutly defended the action.

19 Does that mean that the Board would be obligated to satisfy any judgment that might be obtained in this action against the Institute, for instance to obey a mandamus issued against the Institute; and would the members of the Board be individually liable for contempt if they disregarded such a mandamus? Could they be so liable when they are not named as defendants? To answer these questions in the affirmative would seem strange doctrine.

 20 However that is a responsibility that counsel have assumed. Having expressed my views on these teclmical aspects ofthis case, I shall now, in compliance with, counsel's request, deal with the case on its "merits."

21 The objects of the Institute are:
 "(a) To take such steps as may be considered advisable by the Board for the relief or cure of cancer in the Province of Manitoba.
(b) To endeavor to secure for use in the Province of Manitoba an adequate supply of radium, and to erect and operate a radium emanation plant, in the Physics Department of the University and such other plants and apparatus as may be considered advisable, with the hope of making radium available for the treatment of cancer for all citizens of Manitoba who may require it, and to assist hospitals, institutions and -registered medical practitioners in private practice in providing adequate treatment for any of their patients having or suspected of having a malignant disease.
( c) To assist in establishing and operating a clinic or clinics in hospitals or institutions for the examination and diagnosis and/or treatment of persons in the Province of Manitoba afflicted or suspected of being afflicted with cancer. "
( d) To adopt such measures as may be deemed requisite for informing the public generally as to the treatment of and care for persons afflicted with cancer, and to adopt such measures as may be deemed requisite for preventing or minimizing the development or spread of the disease in the Province. "
( e) To disseminate information in such manner and form as may be found best adapted to aid in the control and successful treatment of cancer. "
(f) To issue from time to time such reports, statistics, circulars and other publications as may be deemed advisable. "
(g) To correlate and co-ordinate by voluntary means all agencies in the Province which may have like objects or purposes in view."

22 The Board is empowered to ''make by-laws, rules or regulations" under s. 9, relating to, "
(a)The appointment, functions, duties and removal of all agents, officers and servants of the Institute and their remuneration
 "(b) The time and place of the calling and holding of meetings, regular and special~ of the Board, the quorum, and the procedure in all things at such meetings.
"(c) The conduct in all other particulars of the affairs of the Institute.

" 23 Under s. 15: 'The Board shall have power from time to time to make rules and regulations governing the use and issue of radium, the property of the Board, but shall have no control over any radium which is not the property of the Board, and without restricting the generality of the foregoing such rules and regulations shall provide for the following matters:
 "(1) That no one in the Province of Manitoba shall be deprived of the benefit of  radium treatment through inability to pay.
 "(2) For those who can afford to pay, a reasonable charge will be made to be determined by the Board.
 "(3) That the use and issue ofradium or its emanations should be confined to regularly licensed competent physicians, or institutions who have made a thorough study of its therapuetic value, as well as its dangers.
 "(4) That if the Institute have a sufficient supply of radium it may make radium emanations available for residents of the adjacent provinces at a price to be determined by the Board.

" 24 Soon after the Board was established, a quantity ofradium was purchased by the Board in the name of the Institute, and was paid fur by money borrowed on a $100,000 bond issued by the Board in the name of the Institute and guaranteed as to principal and interest by the Government of Manitoba. Over this radium the Board exerts the only control to which the radium is subject. The Board has no radium of its own. There is no other radium supply in Manitoba, nor nearer than the City of Chicago, U.S.A.

25 About 1930 the Board drew up a ''list'' of the names of 31 physicians to whom the Board thereafter upon application issued radium and its emanations for several years. The plaintiff was on that list. He applied for and received radium and its emanations on many occasions. His qualifications were never questioned.

26 Under the 1936 Act a new Board was set up to replace the former Board. This new Board cancelled the "list," and invited the medical profession to apply to be placed on a new list. Of the 31 physicians on the old list, 20 applied to be placed on the new list. The plaintiffwas among these applicants, but his application and one other were rejected. Four physicians who had not been on the old list also applied, but all four were rejected.

27 The plaintiff says that the treatment committee of the Board refused his application, and the Board confirmed that refusal without giving him any fair chance to be heard in support of his application; that members of the committee and Board did not fairly or fully investigate his qualifications, and wrongfully rejected his application to be placed on the new ''list.'' The defence is a denial of wrong doing, and a justification of the rejection.

28 The great purpose or ''hope'' of the Act is to make "radium available for all citizens of Manitoba who may require it." To that end the Institute and the Board are "to assist .. . registered medical practitioners in private practice in providing adequate treatment" for those citizens.

 29 Citizens who are patients of plaintiff; and who may require radium treatment, are among the beneficiaries of the Act. They have a right to the radium and are not to ''be deprived of the benefit:" s. 15(1). The Board is therefore in the position of trustee of this radiun Not only was the acquisition ofthe radium made possible by the use of provincial credit, but the costs of operation and maintenance are borne chiefly by donations or grants from the provincial treasury, and from certain quasi-public charities. The very name ''Board of Trustees" indicates a trust. The duty of the Board is, inter alia, to issue radium to patients who may require it, and to do so not directly but through physicians. The Board must recognize each patient's right to select his own physician, and cannot interfere in the choice. If plaintiff is so chosen, the Board's duty is "to assist" him "in providing adequate treatment." The Board is not placed in any position of arbitrary power, or even discretionary power. Their duty is to assist practitioners--not to hamper them Practitioners are to point the way; the Board is to follow.

30 The only qualification or limitation upon this duty is that the Board should confine the use and issue of radium and its emanations '~o regularly licensed competent physicians ... who have made a thorough study" of radium (s. 15(3)). In ascertaining what physicians qualify under this heading, competency is a fact to be established in the ordinary way, by evidence. In other words, the inquiry into competency should be conducted along judicial lines, fairly and fully; the physician concerned should be invited to establish his competency, ifit is doubted, and should be given opportunity to meet opposing evidence and argument. The same procedure should be followed in respect of the study qualification of physicians.

 31 From the evidence before me, I am satisfied that, however sincere the members of the Board may have been in their motives and intentions, they did not conduct a fair, adequate inquiry into plaintiffs qualifications. The evidence, upon which they chiefly relied, consisted of case records of plaintiffs cancer cases. These were interpreted adversely to plaintiff although plaintiff was not afforded adequate opportunity to explain them, nor to support them The omissions and errors said to be disclosed in these records are, in the opinion of plaintiffs expert testimony, of trivial or discretionary or speculative importance only. If so, this view might have been presented on plaintiffs behalf It was not.

 32 The opinion of members of the treatment committee and of the Board was greatly influenced by the views expressed by the then Registrar of the Institute, formed upon those records. The Registrar declares that he was guided to his conclusion by the view that no one but surgeons are or can be qualified to administer radium, and that from these records he is satisfied that plaintiff is not a competent surgeon. This conclusion, as might be expected, is contradicted by plaintiff; who holds himself out as a specialist in surgery. But whether plaintiff is a competent surgeon or not, and whether the Registrar's view is sound or not, no such principle or guide is laid down in the Act. The radium is for competent physicians, and no other standard can be justified under the Act.

 33 On the point of special "study," the treatment committee decided that in dealing with plaintiffs application it was necessary to go behind his academic degrees and diplomas, and to ascertain the content of the courses of training and study which the plaintiff had followed in the University of Toronto. We are told that if this inquiry disclosed a satisfactory course of study, the plaintiffs application would be granted and he would be placed on the new "list." For various reasons this inquiry was in fact never pursued, and yet plaintiffs application was rejected.

 34 In saying what I have said about the method or procedure of dealing with plaintiffs application, I express no opinion on the question of plaintiffs competency or study qualifications, but I cannot but remark that plaintiff did not receive at the hands of the Board, or of committees of the Board, that fair, open, impartial treatment, to which he was entitled. He was and is "a registered medical practitioner," "a regularly licensed" physician whose general competency has not been challenged except in connection with his radium application. His "study" qualifications should be examined more fully and fairly before he js denied the benefit of radium under this Act.

35 In view of what I already said, the defendant Institute is not such a thing as can be reached directly by mandamus, and as the Board is not a party defendant in the action it cannot directly be affected by any judgment in this action. The only hope then js that the Board may adopt the suggestion implied as contained in the foregoing discussion and reconsider the plaintiffs application upon its merits, along the lines that I have indicated. The plaintiffs right to any other relief is not established.

The plaintiff should have costs of this action.

Monday, March 25, 2019

The Goods on the Oath of Allegiance

BP-241E

OATHS OF ALLEGIANCE AND THE
CANADIAN HOUSE OF COMMONS

Prepared by:
James R. Robertson
Law and Government Division
October 1990

TABLE OF CONTENTS
THE CONSTITUTION
OATHS AND THE HOUSE OF COMMONS
FAILURE OR REFUSAL TO TAKE THE OATH
BREACH OF AN OATH OF ALLEGIANCE
CASES INVOLVING OTHER LEGISLATURES
CASES IN OTHER COUNTRIES
WHAT CONSTITUTES A VIOLATION OR BREACH OF THE OATH?
CONCLUSIONS


OATHS OF ALLEGIANCE AND THE
CANADIAN HOUSE OF COMMONS
INTRODUCTION
Questions have recently arisen with respect to the oath of allegiance that is required to be taken by all parliamentarians. Two basic issues are involved. First, is it necessary to take the oath, and what are the consequences of a failure or refusal to do so? Second, what are the consequences of an alleged violation or breach of the oath, and how is the validity of such an allegation established?
This paper will discuss the main issues surrounding the oath of allegiance. It will review relevant precedents in Canada and Great Britain and some of the arguments that may be raised.
Section 128 of the Constitution Act, 1867 provides as follows:
Every member of the Senate and the House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him, and every Member of a Legislative Council or Legislative Assembly of any Province shall before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act; …
The oath set out in the Fifth Schedule reads as follows:
I, A.B. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria.
Note. The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the Time being is to be substituted from Time to Time, with Proper Terms of Reference thereto.
As can be seen, the oath is one of allegiance to the monarch, not to Canada or the Canadian Constitution.
The Canadian oath of allegiance derives from that used in the British Parliament, where the requirement for such an oath arose from the political and religious conflicts of the sixteenth century. The original purpose of the oath was to assert the primacy of the British sovereign over all matters, both ecclesiastical and temporal; as such, it was primarily directed at preventing Catholics from holding public office. (Other religious denominations were also affected incidentally, until the reforms of the nineteenth century.)
Since 1905, Members of Parliament have been allowed to "solemnly, sincerely and truly affirm" that, though they could not take the oath, they were still loyal to the Monarch.(1) The wording of the affirmation as it stands today is as follows:
I, ……………., do solemnly, sincerely and truly affirm and declare the taking of an oath is according to my religious belief unlawful, and I do also solemnly, sincerely and truly affirm and declare that I will be faithful and bear true allegiance to her Majesty Queen Elizabeth the Second.
Section 128 of the Constitution Act, 1867 means that only those Members who have taken and subscribed to the oath are allowed to take their sears in the House of Commons. After the Chief Electoral Officer has provided a certificate listing Members returned to serve in Parliament, the Clerk of the House, or any designated Commissioner, administers the oath of allegiance to these Members. According to the Sixth Edition of Beauchesne’s Rules & Forms of the House of Commons of Canada,
It is not the Oath that makes a person a Member of the House. The person must be a Member before being sworn in. Unless first duly elected under the terms of the Canada Elections Act, R.S.C. 1985, c. E-2, one cannot take the Oath. The object of the Oath is to allow the Member to sit in the House. In accordance with this interpretation of the law, Members-elect, as soon as their election is reported to the Clerk by the Chief Electoral Officer, may receive such requisites as are necessary for the performance of their public duties. But if, for some reason or other, a Member were precluded from taking the Oath and sitting in the House, the person would be deprived of any such allowances.(2)
This interpretation is consistent with that found in the Twenty-first Edition of Erskine May, which indicates that a Member who has not taken his or her oath may not sit and vote in the House, but is entitled to all the other privileges of a Member, except the salary, "being regarded, both by the House and by the law, as qualified to serve, until some other disqualification has been shown to exist."(3) Indeed, in exceptional circumstances, Members of the British House of Commons who have not taken the oath have been nominated to and have served on committees.
The provisions of the Parliament of Canada Act, R.S.C. 1985, c. P-1, also support this position. In Part IV of the Act, which deals with Remuneration of Members of Parliament, section 55(2) provides:
For the purpose of this section, … a person shall be deemed to have become a member of the House of Commons on the day last fixed for the election of a member of the House of Commons for the electoral district represented by the person.
In 1875, a problem arose when a Member of the Canadian House of Commons failed to take the required oath of allegiance before assuming his seat. The matter was referred to the Select Standing Committee on Privileges and Elections, which tabled its report on 8 March 1875. The Committee noted that the Constitution provided no direct forfeiture or penalty for an omission to take the prescribed oath, and neither did any other statute. The report concluded:
Your Committee are therefore of opinion that the seat of Mr. Orton, the member of Centre Wellington, is not affected by his having sat and voted in Your Honourable House before he took the Oath provided, as aforesaid.
Your Committee is further of opinion that the votes of Mr. Orton, before he took the prescribed Oath, should be struck out of the Division List and Journals of Your Honourable House, as he had no right to sit and vote until he had taken that Oath.(4)
Thus, the votes cast by the Member-elect before taking the oath were not recognized, despite his valid election, but he was not disqualified or expelled. It is unclear why Mr. Orton failed to take the oath; it would seem to have been more inadvertent than intentional; furthermore, it would seem that he rectified the situation by taking the oath as soon as the omission was brought to his attention.
In the 1880s, there was a series of court decisions in Great Britain involving a Mr. Bradlaugh and his reluctant to take an oath of allegiance. Various changes to the British form of the oath had been made during the course of the nineteenth century so as to remove objections to it by various groups, such as the Quakers, who objected on religious grounds to any form of oath. These people were expressly exempted by various statutes and permitted to make an affirmation in terms prescribed. A difficulty remained, however, for persons who had no religious belief, and who, therefore, objected to an oath as having no meaning for them.
On being elected to the British House of Commons in 1880, Mr. Bradlaugh, being an atheist, demanded to be allowed to affirm, as he was allowed to do in judicial proceedings, instead of taking an oath. The House permitted him to do this. Litigation ensued, however, on the basis that Mr. Bradlaugh ought to have been required to take the oath, and his not having done so invalidated his votes. The House of Lords eventually held that he was not entitled to make an affirmation in lieu of an oath.(5) Though Mr. Bradlaugh then endeavoured to take the oath, the House resolved that he should not be allowed to do so, presumably because, as an atheist, he would not consider himself bound by it. The courts refused to declare that he was entitled to take the oath.(6) Subsequently, the Court of Appeal decided that Mr. Bradlaugh’s lack of religious belief made it impossible for him to satisfy the requirements of the Act even if he had taken the oath in due form.
In 1886, however, Mr. Bradlaugh did take the oath, along with other Members elected to the new Parliament. The Speaker refused to intervene, saying that he had no authority to prevent a Member from taking the oath: "The honourable member," he said, "takes the oath under whatever risks may attach to him in a court of law."(7) As one commentator wrote:
Mr. Bradlaugh therefore sat and voted subject always to the risk that the law officers of the Crown might proceed against him for penalties incurred and prove to the satisfaction of a jury that having no religious belief he had not taken the oath within the meaning of the Parliamentary Oaths Act.(8)
Two years later, in 1888, the law was changed so as to enable anyone to make an affirmation in lieu of an oath. The Bradlaugh case, while more directly concerned with affirmations than with oaths, also illustrates the need to make an oath or solemn declaration, as well as the extent and limits of parliamentary and judicial scrutiny or review of oaths.
There do not appear to have been any cases of Members of the Canadian House of Commons or the Senate refusing to take the oath of allegiance. It seems clear that a Member who refused to take the oath or make a solemn declaration would not be able to take his or her seat, or draw sessional indemnity. Although various individuals have been elected to the Canadian House of Commons who might have been reluctant to take the oath on various grounds, none of them appears to have neglected to do so or to have refused to swear it or make a solemn declaration.
Failure to take the oath of allegiance is one matter. Breaking an oath is another. According to an early edition of Beauchesne:
Should a member violate his oath he would be amenable to the penalty of not being allowed to sit in the House of Commons. He may be suspended from taking part in the sittings while still remaining a member of Parliament, or, in a case of extreme gravity, a Bill might be passed to annul his election. It may happen, when a state of war exists, that a member of Parliament makes, either outside or on the floor of the House, statements detrimental to Canada and favourable to the enemy. This would be in violation of this oath because allegiance to the King means allegiance to the Country, and the offence would be liable to punishment by the house. The power of dealing with treason is inherent in the Parliament of every country.(9)
Joseph Howe of Nova Scotia was one of the first opponents of Confederation, and led the anti-confederate forces in that province. He was elected to the first House of Commons in 1867. One historian has written:
Despite Howe’s threats in his private letters to England, he assured Major General Hastings Doyle, who was soon to replace Williams as governor, that he would use only constitutional methods to gain repeal. Howe, thus, intended to obey the law of the land, a law which included the act of union. He was not only prepared to take his seat in the Canadian Parliament but he also borrowed $1,000 from W.J. Stairs to enable him to make the trip to Ottawa.(10)
The anti-confederate forces in Nova Scotia argued that attendance at the federal Parliament and the acceptance of seats in the House of Commons would constitute acceptance of the union, and acquiescence in Confederation. Nevertheless, Howe was sworn and took his seat in the House of Commons. The federal Members from Nova Scotia attended the first session of the federal Parliament and remained in Ottawa in spite of the growing insistence in Nova Scotia that they leave. In his first speech in the House of Commons, Howe upheld the right of the anti-confederates to agitate against "a mere act of parliament," but John A. Macdonald noticed that Howe did not pledge himself to agitate. Howe spoke frequently in the House, but, aware of criticism in Nova Scotia, remained apart from the Government and the Opposition. He said that he intended to "…maintain an independent attitude as an anticonfederate, asking nothing and accepting nothing till [the British] Parliament decides for or against us, and then will be governed by circumstances, after full consultation with our friends."(11) In addition to favouring repeal of the act of union, the British North America Act (now the Constitution Act, 1867), Howe also suggested that the tie with Great Britain be re-considered, a rather revolutionary sentiment at the time.
A few years later, Louis Riel was elected to the House of Commons for the riding of Provencher, first in a by-election in 1873, and then in a general election in 1874. Following his 1874 victory, Riel, who was avoiding arrest, travelled to Hull. On 30 March 1874, he crossed the Ottawa River with another Member-elect, Romuald Fiset, and went to the House of Commons to sign the Members’ register and take the oath of office. Having done so, he immediately fled back to Hull before he could be arrested. It appears that the Clerk of the House, who administered the oath, did not recognize Riel, and did not realize who he was until he had left.(12)
Riel was legally elected, sworn and had his name entered on the rolls, but he did not attempt to exercise any of his privileges as a Member.(13) The House of Commons ordered him to appear in the House, which he could not do for fear of arrest, so, after a heated debate, he was expelled for failure to comply with the order. In any event, there appears to have been no question of his refusing to take the oath, nor were there allegations that he had breached it.
In 1942, during World War II, the Bloc populaire was formed in response to the introduction of conscription; by 1944 it had four Members. In the 1945 general election, only two members of the Bloc populaire were elected. There is no indication that the oath of allegiance was or became an issue in relation to them.
It was also in the 1940s that Fred Rose was elected to the House of Commons. One writer has noted that "as Mr. Rose was subsequently convicted in the spy trails of 1946, it would be difficult to say whether his acceptance of the oath of allegiance established a precedent of any significance."(14) Rose was expelled by the House after his conviction, although this was not done on the basis that he had breached his oath of allegiance.
Were a Member to be found to have breached his or her oath of allegiance, the House of Commons could impose punishment. The Canadian House of Commons has from the beginning reserved the right to refuse to let a Member take his or her seat, and to discipline or expel any of its Members. Properly speaking, this right involves the privileges of the House and its Members, and the House’s inherent ability to manage its own affairs, rather than qualifications for membership. There is ample precedent for this practice in Canada, and in other parliamentary systems. Before Confederation, expulsions were effected in Canada in 1800, 1829, 1831, and 1858. Members have frequently challenged the right of other Members to sit and vote. In addition to the expulsion of Louis Riel, there have been a number of serious investigations with respect to the propriety of allowing certain Members to remain in office. Most of these cases involved allegations of criminal activity, although one writer has noted “the readiness of the House to disqualify or expel, even though no statute may have been violated — and provided, perhaps, that party lines could stand the strain."(15)
Although actual rejection of an elected Member by the House is rare, the House of Commons expelled Louis Riel twice in 1874-75, Thomas McGreevy in 1891, and Fred Rose in 1947. In two of these cases, the House did not pass a formal motion of expulsion: in Riel’s second expulsion, the House merely observed that he appeared to have "been adjudged an outlaw for felony," and was, therefore, disqualified; Rose was found to be "incapable of sitting or voting in this House" when he was sent to jail.(16) In none of these cases — even that of Rose, who was convicted of treason — did the issue arise of whether the individual concerned had breached his oath of allegiance.
Members of provincial legislatures and assemblies are required by section 128 of the Constitution Act, 1867 to take the same oath as federal Members of Parliament.
Individuals advocating various forms of separation have been elected to provincial legislatures in Canada. For example, in the wake of Confederation, the anti-confederates gained control of the provincial legislature in Nova Scotia, and eventually formed the government. There is no evidence that any problem or issue arose over their taking the oath of allegiance.
The most recent and dramatic case involves the 1976 election of the Parti Québécois in Quebec. According to one press report, members of the Parti Québécois, faced with the necessity of taking the oath, resolved it by "crossing their fingers" while doing so.(17) Another explanation is that the oath was seen as an oath to the Queen in right of the province, since the Crown in Canada is divisible. As such, the Queen represents the state (or the province), and is a symbol rather than an identifiable individual.
Since 1982, members of Quebec’s National Assembly have been required to take a second oath. Section 15 of the National Assembly Act. R.S.Q., A-23.1, provides: "No member may sit in the Assembly before taking the oath or solemn declaration provided in Schedule I." Schedule I sets out the following oath or affirmation:
I, (full name of the Member), swear (or solemnly affirm) that I will be loyal to the people of Québec and that I will perform the duties of Member honestly and justly in conformity with the constitution of Québec.
According to the Members’ Manual of the National Assembly:
Writers on parliamentary law (Beauchesne, 4th ed) state that the oath of allegiance to the Queen required by section 128 of the British North America Act refers to allegiance to the country, while the oath required by section 15 of the National Assembly Act is an oath of allegiance to the people and Constitution of Quebec.(18)
[unofficial translation]
This distinction between the two oaths, and description of the constitutionally required oath, presumably enables Members to take the oaths who might otherwise object to doing so.
There have been cases where "separatist" parties and individuals have been elected to legislatures in other countries. Again, few specific examples have been found of the failure or refusal to take an oath of allegiance or of allegations that a Member violated or breached such an oath.
In Great Britain, members of Welsh and Scottish nationalist parties have been elected to the British House of Commons. Such individuals have often advocated devolution, and other forms of political restructuring. As they would not necessarily have opposed the continuation of the monarchy, however, they would probably have had no great difficulties in swearing an oath of allegiance to the Crown.
More problematic is the case of Irish Catholic members of the British Parliament who advocate unification of Northern Ireland with the Republic of Ireland. Members of Sein Fein, the political arm of the Irish Republican Army (IRA), and others, would presumably be reluctant to pledge allegiance to a British monarch. No cases have been found, however, where a duly elected Member did not take the oath, or was alleged to be in violation of it.
There were problems, however, before the establishment of the Republic of Ireland, when Members of the British Parliament representing constituencies in what was known as the Irish Free State (1921-37) and Eire (1937-49) were constitutionally required to take an oath of allegiance to the British Crown.(19)
Similarly, as various former colonies in the British Empire gained their independence, no doubt legislators were elected who advocated independence, separation, a break from Britain, and other policies that were not necessarily consistent with the oath of allegiance. Even so, the issue does not appear to have arisen in any significant way.
In 1920, the Australian House of Representatives expelled one of its Members, Hugh Mahon, for:
Having, by serious and disloyal utterances at a public meeting … been guilty of conduct unfitting him to remain a Member of this House and inconsistent with the oath of allegiance which he has taken as a Member of this House … .(20)
This is virtually the only case found where a legislator lost his or her seat for violating an oath of allegiance. Even this case seems to have been based on political and personal grounds as much as anything else.
There do not appear to be any cases to illustrate what would constitute a betrayal of the oath of allegiance. The taking of an oath or indeed an affirmation is essentially a question of morality. It is generally believed that people do not take the oath or affirmation lightly, and will consider themselves bound by it. If the person taking the oath lies, on one level that is a matter between that person and his or her conscience or God. At the same time, just as witnesses lie in court, despite having been sworn to tell the truth, people do on occasion break their oaths. Moreover, in the present, less religious era, it is likely that many people are not as intimidated by oaths as was previously the case.
When an oath is broken, penalties are usually imposed. For example, witnesses who lie in court can be charged with perjury or held in contempt of court. It is up to the legislature to punish such contraventions by legislators. Punishment can consist of a motion of censure, or, in the most severe cases, expulsion of the individual.
There can be significant difficulties in establishing whether politicians have broken an oath. Perhaps this would be easy to do in a clear case of treason, but in most other cases it would depend, in part, on how one saw or interpreted the oath, and one’s definition of allegiance or loyalty.
Some see the oath not as one of allegiance to the Queen as an individual so much as one of allegiance to the Crown as a symbol. The Queen can be seen as representing or symbolizing the state, either nationally or provincially, or as the embodiment of a democratic and constitutional form of government.
It is extremely difficult to define what activities would be considered to be a breach of the oath of allegiance. Would the test be objective or subjective? While an individual might feel honestly and sincerely that his or her actions did not breach the oath, others might disagree. Moreover, if the oath is considered to be to the Queen as representative or symbolic of a parliamentary and democratic system, one is arguably remaining faithful to it so long as one does not advocate a violent overthrow of the government.
In a courtroom setting, it may be a relatively simple matter to determine whether someone has told the truth in sworn testimony. In considering concepts like "allegiance," though, determination of a breach is much more difficult. What one person considers to be in the best interests of the country may not seem to be so to other people. An individual may honestly believe that a communist form of government would be good for the people: would this belief be contrary to his or her oath of allegiance? Does how the person goes about achieving the goal make a difference? One person’s idea of loyalty to Canada may not be someone else’s but so long as the objective is pursued by legal, democratic and parliamentary means, it might be argued that the person has not violated the oath of allegiance.
A distinction could also be drawn between those who seek a new constitutional arrangement and those who seek the break-up of the country. Again, by representing certain views of their constituents, Members could be perceived as being themselves at variance with the "national interest." Similarly, even the break-up of the country may not in itself constitute a violation of the oath: the oath is to the Queen, and the Queen could remain the head of any new state that resulted (this would seem to be the policy of the Scottish Nationalist Party in Great Britain).
On 1 November 1990, the Speaker said "Your Speaker is not empowered to make a judgement on the circumstances or the sincerity with which a duly elected Member takes the oath of allegiance. The significance of the oath to each Member is a matter of conscience and so it must remain."(21) He went on to remind the House that:
the fact that an Honourable Member holds views which are vigorously opposed by other Honourable Members can in no sense be allowed to detract from his right to present them.
A historical perspective on Parliament here in Canada and in Great Britain reveals ample precedent for the presence in the House of duly elected Members whose ultimate goal may be at odds with, even inimical to, the constitutional status quo.
Only the House can examine the conduct of its Members and only the House can take action if it decides action is required. Should the House decide that an Honourable Member has in some way committed a contempt, then it is for the House to take appropriate steps.(22)
It is important to understand the purpose of oaths of allegiance. Persons who are elected or appointed to public office are expected to be loyal and faithful. They are assuming positions of public trust, and the oath of allegiance is a pledge that they will conduct themselves "patriotically," and in the best interests of the country. The oath also serves to remind the individual taking it of the serious obligations and responsibilities that he or she is assuming. There is no magic about oaths, but they do serve an important symbolic function.
Various forms of oaths are possible. An oath of allegiance to the head of state is the one adopted in Canada and most Commonwealth countries. Oaths of allegiance to the country, to the people, or to the country’s constitution are also used in various countries. The Dutch have added a requirement that the individual take an oath or affirmation that he or she is not under any obligation to any other person. Variations of these oaths are possible, for example, an oath in favour of democratic traditions. To some extent, the choice of subject matter for oaths depends on the values of the society, and the things seen as the cornerstones of the country’s political system.
The Crown was important in terms of the historical development of the United Kingdom. In the context of the religious battles between Catholics and Protestant, and the debate over religious leadership, the requirement for an oath of allegiance to the monarch is understandable. When the Canadian Constitution was being drafted, the British tradition was imported. As Canada gradually acquired full independence, culminating in the patriation of the Constitution in 1982, the nature of the oath required of legislators in Canada could have been reviewed. Since the Queen is still the head of state of Canada, an oath of allegiance to her is still relevant. The monarchy, however, is not as central to the Canadian political system as it once was; indeed, many Canadians question the concept of a monarch, particularly one who, living in another country, is perceived as "foreign." Others see the Crown as a vestige of the colonial or imperial past. At the same time, however, the oath does not involve the Queen in her personal capacity, but rather the Queen as the symbol or personification of the country, its constitution and traditions, including concepts such as democracy.
Failure to take the oath of allegiance constitutes an absolute bar to sitting or voting in Parliament or the provincial legislatures of Canada. The only way to change this would be to amend the Canadian Constitution. It is not entirely clear whether this could be done under the general amending formula (through resolutions of Parliament and of the legislatures of at least two-thirds of the provinces having at least fifty per cent of the population) or whether it would require unanimity. (One could argue that a single legislature could by itself amend the oath required of its own Members, but any action based on such a premise would probably be challenged.)
There is, however, no penalty for a Member’s failure to take an oath, other than his or her inability to sit or vote or to draw a salary. Presumably, the House of Commons could expel anyone who consistently refused to take the oath, or even declare the seat vacant. Such an act, however, would probably be challenged under the Charter of Rights and Freedoms.
Once a Member has taken the oath of allegiance, thus becoming entitled to take a seat and vote in the House, the only issue that could arise would be whether the Member violated or breached the oath. The House of Commons has the power to expel or otherwise discipline Members who contravene the oath. There do not appear to be any precedents for use of this power, however, and, given the general vagueness of the concept, considerable difficulties would seem to lie in the way of establishing the validity of allegations of contravention. Ultimately, the matter would probably have to be resolved politically, although the Charter of Rights and Freedoms might be relevant in appropriate circumstances.


(1) Arthur Beauchesne, Rules & Forms of the House of Commons of Canada, Fourth Edition, The Carswell Company Limited, Toronto,1958, at citation 15, p. 13. This was apparently done by Instructions passed under the Royal Sign Manual and Signet of 15 June 1905. The question arises as to how a Royal Instruction can legally amend a constitutional provision; it does not appear that this issue has been addressed. According to later editions of Beauchesne’s (see, for example, Sixth Edition, 1989, citation 243), the Oaths of Allegiance Act, R.S.C 1985, c. 0-1, permits Members who object to being sworn to make a solemn affirmation if the taking of an oath is contrary to their religious belief, or if they have no religious belief. This, however, does not appear to be correct, as a federal statute cannot override a constitutional provision.
(2) Alistair Fraser, W.F. Dawson, and John A. Holtby, Beauchesne’s Rules & Forms o f the House of Commons of Canada, Sixth Edition, the Carswell Company Limited, Toronto, 1989, citation 242(2), p. 68.
(3) C.J. Boulton, ed., Erksine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, Twenty-first Edition, Butterworths, London, 1989, at p. 231.
(4) House of Commons, Journals 1875, at p. 176.
(5) Clark v. Bradlaugh, (1882-83), 8 App. Ca. 354 (H.L.), on appeal from (1880-81), 7 Q.B.D. (C.A.)
(6) Attorney-General v. Bradlaugh (1884-85), 14 Q.B.D. 667.
(7) Quoted in Sir William R. Anson, The Law and Custom of the Constitution, Fourth Edition, Reissue Revised, Oxford, 1911, Volume I, at p. 93.
(8) Ibid., at p. 93. This text contains a full discussion of the Bradlaugh case, at p. 89-95.
(9) Arthur Beauchesne, Rules & Forms of the House of Commons of Canada, Fourth Edition, the Carswell Company Limited, Toronto, 1958, at citation 16(2), p. 14.
(10) Kenneth George Pryke, "Nova Scotia and Confederation, 1864-1870," Doctoral Dissertation, Duke University, 1962, at p. 147.
(11) Ibid., at p. 152-153. See also J. Murray Beck, Joseph Howe, Volume II, McGill-Queen’s University Press, Montreal, 1983, at p. 223.
(12) Thomas Flanagan, Louis "David" Riel: "Prophet of the New World," University of Toronto Press, Toronto, 1979, at p. 42; William McCartney Davidson, Louis Riel, 1844-1885, The Albertan Publishing Company Ltd., Calgary, 1955, at p. 110; Hartwell Bowsfield, Louis Riel: The Rebel and the Hero, Oxford University Press, Toronto, 1971, at p. 70; G.F.G. Stanley, Louis Riel: Patriot or Rebel?, The Canadian Historical Association, Booklet No 2, Ottawa, 1979, at p. 14.
(13) Norman Ward, The Canadian House of Commons: Representation, University of Toronto Press, Toronto, 1950, at p. 70; see also ibid.
(14) Ibid., p. 79.
(15) Ibid., p. 72.
(16) Norman Ward, Dawson’s The Government of Canada, Sixth Edition, University of Toronto Press, Toronto, 1987, at p. 105. In 1986, the right of the legislature of Nova Scotia to expel a duly elected member who had pleaded guilty to an indictable offence was challenged under the Canadian Charter of Rights and Freedoms. The court held that, while the legislature had the power to expel the Member, it could not prevent him from running again.
(17) Charles Lynch, "Bloc Québécois: Members Make Oaths of Office Seem Ridiculous," The Ottawa Citizen, 29 July 1990.
(18) Quebec, National Assembly, Manuel des membres de l’Assemblée nationale, ch. 2.1, 1986, p. 2.
(19) See Donal O’Sullivan, The Irish Free State and its Senate, Faber and Faber Limited, London, 1940; J.L McCracken, Representative Government in Ireland, Oxford University Press, London, 1958; Timothy Patrick Coogan, Ireland Since the Rising, Pall Mall Press, London, 1966.
(20) Australia, House of Representatives, Votes and Proceedings (1920-21), p. 431. See also Parliamentary Debates, 1920-21, Vol. SCIV, pp. 6283-6284, 6327-6328, 6382-6475.
(21) House of Commons, Debates, 1 November 1990, p. 14970.
(22) Ibid.

Monday, February 25, 2019

Alberta curriculum guide to writing your name, grade one

Alberta curriculum guide to writing your name, grade one.....

Specific Outcome Statements WiggleWorks PreK-1
Correlation ---
The Alberta English Language Arts Grade 1 Curriculum to
Scholastic WiggleWorks PreK-1
11

4.2 Attend to Conventions (continued)
Attend to spelling
• Spell phonically irregular high frequency
words in own writing
• Use phonic knowledge and skills and visual
memory to attempt spelling of words need for
writing
All Guided Reading Teaching Plans
• Know that words have conventionally
accepted spellings
Attend to capitalization and punctuation
• Capitalize the first letter of names and the
pronoun “I” in own writing
• Identify periods, exclamation marks and
question marks when reading, and use them to
assist comprehension
Teacher’s Guide p. 19
Guided Reading Teaching Plans:
Hide and Seek

I Love Mud and Mud Loves Me p.
3, 4
What’s Inside? p. 3
Music Is in the Air p. 4
Frog’s Lunch
The Ball Game p. 4
Itchy, Itchy Chicken Pox p. 4
Buzz Said the Bee p. 3
Jane Goodall p. 4
Ants and Other Insects p. 4
Willie’s Wonderful Pet p. 4
Guided Reading Teaching Plans
4.3 Present and Share
Present information
• Present ideas and information to a familiar
audience, and respond to questions
All Guided Reading Teaching Plans
Enhance presentation
• Add such details as labels, captions and
pictures to oral, print and other media texts
All Guided Reading Teaching Plans
Use effective oral and visual communication
• Speak in a clear voice, with appropriate

Tuesday, February 19, 2019

US Code definition of person human being applicable to all registered subjects

1 U.S. Code: § 8 “Person”, “human being”, “child”, and “individual” as including born-alive infant

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(a)
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development.
(b)
As used in this section, the term “born alive”, with respect to a member of the species homo sapiens, means the complete expulsion or extraction from his or her mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.
(c)
Nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being “born alive” as defined in this section.
(Added Pub. L. 107–207, § 2(a), Aug. 5, 2002, 116 Stat. 926.)

Monday, January 7, 2019

Quoting the Bible: The Use of Religious References in Judicial Decision-Making

City University of New York Law Review
Volume 9 | Issue 1
Winter 2005
Quoting the Bible: The Use of Religious References
in Judicial Decision-Making
Sanja Zgonjanin
CUNY School of Law
Follow this and additional works at: https://academicworks.cuny.edu/clr
Part of the Law Commons
The CUNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact
cunylr@law.cuny.edu.
Recommended Citation
Sanja Zgonjanin, Quoting the Bible: The Use of Religious References in Judicial Decision-Making, 9 N.Y. City L. Rev. 31 (2005).
Available at: 10.31641/clr090102
Quoting the Bible: The Use of Religious References in Judicial Decision-
Making
Acknowledgements
The author thanks Professor Ruthann Robson for her invaluable comments and suggestions.
This article is available in City University of New York Law Review: https://academicworks.cuny.edu/clr/vol9/iss1/3
QUOTING THE BIBLE: THE USE OF RELIGIOUS
REFERENCES IN JUDICIAL DECISION-MAKING
Sanja Zgonjanin*
INTRODUCTION
The use of religion in judicial decision-making is the subject of
an ongoing debate.1 Whether and to what extent a decision is
based on religious argument or influenced by religious convictions
is a difficult question to answer. While scholars disagree on the
appropriateness of religious arguments or influences in judicial decision-
making,2 they commonly recognize that explicit reference to
religious authority in a written opinion is problematic.3 Many
* J.D. Candidate, City University of New York School of Law, May 2006; M.A.,
Columbia University, 2000; M.L.S., Queens College, 1999. The author thanks Professor
Ruthann Robson for her invaluable comments and suggestions.
1 See Constitution Restoration Act of 2005, S. 520, 109th Cong. (2005); H.R. 1070,
109th Cong. (2005).
2 Scholars differ on the issue of the appropriateness of religion in judicial decision-
making. However, most legal literature on the issue is written from the perspective
advocating the use of religion in judicial decision-making. That viewpoint is
shared by moderates and conservatives alike. See generally MICHAEL J. PERRY, RELIGION
IN POLITICS: CONSTITUTIONAL AND MORAL PERSPECTIVES 102-04 (1999); KENT GREENAWALT,
RELIGIOUS CONVICTIONS AND POLITICAL CHOICE 239-41 (1988) [hereinafter
GREENAWALT, RELIGIOUS CONVICTIONS]; Scott C. Idleman, The Concealment of Religious
Values in Judicial Decisionmaking, 91 VA. L. REV. 515 (2005) [hereinafter Idleman, Concealment];
Teresa S. Collett, “The King’s Good Servant, but God’s First”: The Role of Religion
in Judicial Decisionmaking, 41 S. TEX. L. REV. 1277 (2000); Mark B. Greenlee, Faith on
the Bench: The Role of Religious Belief in the Criminal Sentencing Decisions of Judges, 26 U.
DAYTON L. REV. 1 (2000); Daniel G. Ashburn, Appealing to a Higher Authority?: Jewish
Law in American Judicial Opinions, 71 U. DET. MERCY L. REV. 295 (1994).
3 GREENAWALT, RELIGIOUS CONVICTIONS, supra note 2, at 239 (“Judicial opinions
are formalized justifications for decisions. Opinions are supposed to refer only to
what is legally relevant . . . . What is legally relevant is generally conceived to be the
same for all judges, so neither personal religious convictions nor any other idiosyncratic
convictions are legally relevant. Given this understanding about judicial opinions,
it follows that opinions should not contain direct references to the religious
premises of judges.”); Mark C. Modak-Truran, Reenchanting the Law: The Religious Dimension
of Judicial Decision Making, 53 CATH. U. L. REV. 709, 814 (2004) (“In addition,
judges are not insincere by leaving their religious or comprehensive justifications out
of their opinions but consistent with the Establishment Clause (i.e., the ‘rule of law’)
and a proper understanding of religious pluralism. Leaving out religious justifications
also facilities [sic] consensus on legal results and lower-level legal rules and principles
without raising the thorny philosophical, theological, and hermenuetical [sic] questions
implicated by religious justifications.”); Scott C. Idleman, The Limits of Religious
Values in Judicial Decisionmaking, 81 MARQ. L. REV. 537, 542-43 (1998) (“In fact, given
that religious bases may be less than universal in their acceptance among the relevant
audiences to the opinion, it is quite sensible that the judge would not necessarily
31
32 NEW YORK CITY LAW REVIEW [Vol. 9:31
judges are religiously active and outspoken about the impact of religion
on their work.4 Some well-known Supreme Court justices
were, and are, deeply religious.5 Unlike the past, today’s Supreme
Court Justices, such as Antonin Scalia, speak publicly about their
religious faith.6 Some judges have explicitly stated in their opinions
that “[c]ourts must recognize that the state is but one of several
spheres of government, each with its distinct jurisdiction and
make reference to them in the act of justification.”); Bruce A. Green, The Role of Personal
Values in Professional Decisionmaking, 11 GEO. J. LEGAL ETHICS 19, 35 (1997) (“One
would expect that a savvy judge who bases his or her decision on personal morality
will not do so explicitly, but will cite only legally relevant grounds for the decision.”);
Kent Greenawalt, Religious Expression in the Public Square—The Building Blocks for an
Intermediate Position, 29 LOY. L.A. L. REV. 1411, 1419 (1996); see generally David Barringer,
Higher Authorities, A.B.A. J., Dec. 1996, at 68.
4 See, for example, Raul A. Gonzalez, Climbing the Ladder of Success—My Spiritual
Journey, 27 TEX. TECH. L. REV. 1139, 1157 (1996), in which Texas Supreme Court
Justice Gonzalez describes his religious re-awakening and the impact his faith had on
his decisions, including Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984); Kennedy v. Hyde,
682 S.W.2d 525 (Tex. 1984); In re Unnamed Baby McLean, 725 S.W.2d 696 (Tex. 1987);
Jilani v. Jilani, 767 S.W.2d 671 (Tex. 1988); Cox v. Thee Evergreen Church, 836 S.W.2d
167 (Tex. 1992), Speer v. Presbyterian Children’s Home, 847 S.W.2d 227 (Tex. 1993);
Valenzuela v. Aquino, 853 S.W.2d 512 (Tex. 1993); Tilton v. Marshall, 925 S.W.2d 672
(Tex. 1996); and Krishnan v. Sepulveda, 916 S.W.2d 478 (Tex. 1995). He concludes:
In each of the above cases, my relationship with God impacted the way I
considered and wrote about the issues presented. How we experience
God and our level of religious commitment (or lack of commitment)
impacts our work. One’s views on how the world began, sin, forgiveness,
and redemption influences our attitudes, behavior, and everything
that we do.
Gonzalez, supra, at 1157.
5 See generally James W. Gordon, Religion and the First Justice Harlan: A Case Study in
Late Nineteenth Century Presbyterian Constitutionalism, 85 MARQ. L. REV. 317 (2001);
Thomas C. Berg & William G. Ross, Some Religiously Devout Justices: Historical Notes and
Comments, 81 MARQ. L. REV. 383 (1998); Stephen L. Carter, The Religiously Devout Judge,
64 NOTRE DAME L. REV. 932 (1989). Some judges believe that they have a right to use
religious references in justifying their decisions. Judge Griffen, who is also a Baptist
pastor, explains why he thinks he has that right:
Finally, devout judges must remain sensitive to the important role that
religious values and their proper expression serve within a pluralistic
society. If the devout judge does not remind society that certain conduct
is condemned as offensive to domestic tranquility, contrary to the
laws of nature, or inconsistent with truth, then society is denied the
value of that information and judgment in its pursuit of justice. The
give-and-take of competing moral, behavioral, intellectual, and cultural
philosophies is how a pluralistic society operates. The devout judge, as
a citizen of two societies, helps society remain pluralist by thinking and
acting in a holistic way, not by trivializing religious conviction.
Wendell L. Griffen, The Case for Religious Values in Judicial Decision-Making, 81 MARQ. L.
REV. 513, 520 (1998).
6 See Joan Biskupic, Scalia Makes The Case for Christianity; Justice Proclaims Belief in
Miracles, WASH. POST, Apr. 10, 1996, at A1; see also, e.g., Michael Stokes Paulsen &
Steffen N. Johnson, Scalia’s Sermonette, 72 NOTRE DAME L. REV. 863 (1997).
2005] QUOTING THE BIBLE 33
limited authority granted by God,”7 and “that God, not the state or
any government established by man, is the source of all our
rights.”8 Some judges use religion as an alternative to traditional
sentencing such as jail or rehabilitation for drug and alcohol offenders.
9 Other judges go as far as prohibiting the parents in a
divorce decree from exposing their child to “non-mainstream” religious
beliefs and rituals.10 Despite the unprecedented presence
of religion in the lives of ordinary American citizens,11 some scholars12
continue to maintain “a modern myth that religion is somehow
persecuted in American life.”13
Responding to the argument that explicit religious references
are rare or absent from judicial opinions,14 this Article will demonstrate
that judges’ personal religious beliefs and religious education
very often find a place in decisions they write.15 A quick
7 Ex parte G.C., No. 1040001, 2005 WL 1793345, at *22 (Ala. July 29, 2005)
(Parker, J., dissenting).
8 Id. at *14 (Bolin, J., concurring specially).
9 See Alan Maimon, Judge Lets Some Defendants Attend Worship as Sentencing Option,
COURIER-J. (Louisville, KY), May 31, 2005, at A1. Michael Caperton, a Laurel district
judge since 1994 and a devout Christian, offered the option of attending worship for
ten services “about 50 times to repeat drug and alcohol offenders.” Id.
10 See Kevin Corcoran, Father Appeals Anti-Wicca, INDIANAPOLIS STAR, May 26, 2005,
at A1.
11 See generally Faith Based and Community Initiatives, http://
www.whitehouse.gov/government/fbci/index.html (last visited Jan. 24, 2006). In the
field of legal theory, one author suggested it is time to develop a Christian jurisprudence.
Jonathan Edward Maire, The Possibility of a Christian Jurisprudence, 40 AM. J.
JURIS. 101, 101-02 (1995).
12 Paulsen & Johnson, supra note 6, at 867 (commenting that Justice Scalia’s
speech at a prayer breakfast at the First Baptist Church in Jackson, Mississippi, on
April 9, 1996, was “about the clash of world views between Christianity and today’s
dominant culture. It was about the difficulties of being a Christian in a secular
world—our culture and, especially, our legal culture.”).
13 Biskupic, supra note 6, at A7 (quoting James Dunn, executive director of the
Baptist Joint Committee on Public Affairs).
14 Idleman, Concealment, supra note 2, at 520 (“To most observers of the American
legal system, including its participants, the absence of overt religious language or reasoning
in judicial decisionmaking is unremarkable. In all likelihood, it is not even
noticed.”); Modak-Truran, supra note 3, at 786-87 (“[e]xplicit religious references
rarely appear in judicial opinions.”); Berg & Ross, supra note 5, at 387 (“Note, however,
the limits on the importance of religious arguments. First, such arguments do
not appear as often as one might expect in an age of pervasive Christianity: one can
basically count them on two hands.”); Richard H. Hiers, The Death Penalty and Due
Process in Biblical Law, 81 U. DET. MERCY L. REV. 751, 752 (2004) (“Biblical texts occasionally
are even cited as authority in judicial opinions.”).
15 See generally J. Michael Medina, The Bible Annotated: Use of the Bible in Reported
American Decisions, 12 N. ILL. U. L. REV. 187 (1991). This annotation collects cases
where a court directly cites a biblical passage, and the author lists the following doctrines
for which the Bible is cited as the foundation: “the sequestration rule, punitive
damages, forgiveness of debts, due process, forfeiture, alien rights, statutory construc34
NEW YORK CITY LAW REVIEW [Vol. 9:31
Westlaw online survey of federal and state cases for the use of biblical
books, such as Genesis, Exodus, Leviticus, and Deuteronomy, produces
a high number of results.16 Interestingly, courts of the
nineteenth century rarely quoted the Bible, despite the fact that
many judges were devoutly religious and active in their local congregations.
17 Quoting the Bible is much more characteristic of
twentieth-century American courts and is a matter of great concern
to anyone who believes that judicial decision-making should not be
based on comprehensive doctrines such as religion.18
The first part of this Article discusses the judicial use of the
Bible in criminal sentencing by trial courts. The second part examines
some of the ways in which courts undermine the religious
character of biblical quotations. The third part examines the variety
of purposes for which courts use biblical quotations. The
fourth part is a case study of judicial use of two specific biblical
tion, basic agency doctrine, tenancy by the entirety, the two-witness rule, the right of
confrontation, judicial impartiality, criminalization of sodomy, the necessity defense
to criminal charges, the right of free travel, usury, eminent domain, impeachment of
witnesses, the law of apportionment, property tax exemptions, double jeopardy, and
various elements of past and present domestic relations law.” Id. at 189-91.
16 For example, a Westlaw search performed on February 10, 2006 resulted in the
following: Genesis 1 is quoted in 10 state and 11 federal cases; Exodus 21 is quoted in 59
state and 27 federal cases; Leviticus 24 is quoted in 5 state and 8 federal cases; Deuteronomy
19 is quoted in 16 state and 7 federal cases. In the same search, the word Leviticus
appeared in 126 state, 89 federal, and 4 Supreme Court cases; the word Deuteronomy
appeared in 173 state, 100 federal, and 5 Supreme Court cases. This author’s review
of search results showed that only a small number of quotations are part of the facts of
a case. Due to the lack of more precise search methods in Westlaw and Lexis
databases that would allow comprehensive inquiries of biblical quotations, this Article
was limited to a discussion of a very narrow scope of biblical quotations in judicial
opinions.
17 See infra Appendix.
18 John Rawls based his theory of justice on the concept of public reason shared by
all citizens, “independent of opposing and conflicting philosophical and religious
doctrines,” and “an overlapping consensus of reasonable religious, philosophical, and
moral doctrines.” He said:
The religious doctrines that in previous centuries were the professed
basis of society have gradually given way to principles of constitutional
government that all citizens, whatever their religious view, can endorse.
Comprehensive political and moral doctrines likewise cannot be endorsed
by citizens generally, and they also no longer can, if they ever
could, serve as the professed basis of society.
JOHN RAWLS, POLITICAL LIBERALISM 9-10 (1993). Rawls viewed the Supreme Court as
the best exemplar of public reason in a society of constitutional regime with judicial
review and argued that public reason is “well suited to be the court’s reason in exercising
its role . . . .” Id. at 231. But see generally GREENAWALT, Publicly Accessible Grounds of
Decision and Religious Convictions, in RELIGIOUS CONVICTIONS, supra note 2, at 49-84;
and Richard Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637
(1998).
2005] QUOTING THE BIBLE 35
passages, Matthew 6:24 and Luke 16:13. The fifth part considers the
judicial use of religious references other than the Bible. The Article
concludes that the use of religious references in judicial decision-
making should be prohibited.19
“The Christian state knows only privileges.”20 Christian faith is
privileged in the United States.21 Because a privilege is not a right,
the government is under no obligation to confront the injustice
and discrimination created by it.22 On the contrary, since the religious
beliefs of a majority of Americans are associated with Christianity,
23 such privilege is largely invisible and sustained by the
power it creates.24 As is often the case, the characteristics of the
majority become so internalized that they are considered the social
norm.25 In a way, they “domesticate” the minority.26 Additionally,
19 “The justices cannot, of course, invoke their own personal morality, nor the
ideals and virtues of morality generally. Those they must view as irrelevant. Equally,
they cannot invoke their or other people’s religious or philosophical views.” RAWLS,
supra note 18, at 236.
20 KARL MARX, On The Jewish Question, in 3 KARL MARX & FREDERICK ENGELS: COLLECTED
WORKS 1843-44, at 146, 146 (Jack Cohen et al. trans., 1975).
21 Joseph R. Duncan, Jr., Privilege, Invisibility, and Religion: A Critique of the Privilege
that Christianity Has Enjoyed in the United States, 54 ALA. L. REV. 617, 626 (2003). See,
e.g., Zorach v. Clauson, 343 U.S. 306, 313 (1952) (upholding a New York City program
permitting public schools to release students to attend religious instruction and stating,
“[w]e are a religious people whose institutions presuppose a Supreme Being.”);
Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892) (holding that a
statute prohibiting the contracting of foreigners to perform labor and services did not
apply to clergy, and stating that “this is a Christian nation”).
22 See Duncan, supra note 21, at 621.
23 See BARRY A. KOSMIN ET AL., THE GRADUATE CENTER OF THE CITY UNIVERSITY OF
NEW YORK, AMERICAN RELIGIOUS IDENTIFICATION SURVEY 12 (2001), http://
www.gc.cuny.edu/faculty/research_studies/aris.pdf (on file with the author). According
to the most comprehensive study of religious identification of American
adults, done by the Graduate Center of the City University of New York, 76.5% of the
U.S. population self-identifies as Christians. Id. See also Largest Religious Groups in
the United States of America, http://www.adherents.com/rel_USA.html (last updated
Jan. 24, 2006).
24 Duncan, supra note 21, at 622. See also Simpson v. Chesterfield County Bd. of
Supervisors, 404 F.3d 276, 283 (4th Cir. 2005). Applying Marsh v. Chambers, 463 U.S.
783 (1983), the court held that the county board’s invocation policy excluding a
county resident’s Wiccan religion was constitutionally sound and that the Wiccan religion
was not monotheistic, did not “fit broadly within ‘the Judeo-Christian tradition,’”
and lacked “the unifying aspects of our heritage.” Id.
25 See Stephanie M. Wildman with Adrienne D. Davis, Language and Silence: Making
Systems of Privilege Visible, 35 SANTA CLARA L. REV. 881, 890 (1995). See also STEPHANIE
M. WILDMAN, PRIVILEGE REVEALED: HOW INVISIBLE PREFERENCE UNDERMINES AMERICA
141 (1996).
[O]ur social system is not supposed to privilege organized religion or
religious belief over the secular realm. But this protection of the secular
creates a peculiar vacuum, in which religion is supposed to be invisible,
yet Christmas is a national holiday. Even the phrasing ‘church [but
36 NEW YORK CITY LAW REVIEW [Vol. 9:31
religious practices and expressions are widely accepted and sanctioned
by courts based on their context27 or tradition.28 It is now
accepted that religious practices and expressions that are deeply
embedded in the nation’s history and tradition do not violate the
Constitution.29 They include, among others, opening the Supreme
Court session with “God save the United States and this honorable
not synagogue or mosque] and state’ privileges Christianity as the defining
religion for constitutional drafting. Systems of privilege and the religious/
secular dichotomy intertwine with the rule of law to contribute
to the undermining of justice. Systemic privileging and oppression remain
invisible and undiscussed, in accordance with the unwritten rules
of our society. The rule of law does nothing to end this invisibility and
may even contribute to its continuation. Thus the very act of seeing that
the rule of law and systems of privilege undermine justice is itself problematic.
A full attack on privileging and oppression can begin in earnest
only when the legal profession recognizes this privileging dynamic.
But this reality—privilege—that we must see has not even found articulation
in legal vocabulary.
Id.
26 The term “domestication” is borrowed from lesbian legal theory. “Domestication
also describes a process of substituting one way of thinking for another. Domestication
has occurred when the views of the dominant culture, in this case legal culture,
are so internalized they are considered common sense.” Ruthann Robson, Mother:
The Legal Domestication of Lesbian Existence, 7 HYPATIA 172, 172 (1992).
27 See County of Allegheny v. ACLU, 492 U.S. 573, 621 (1989) (holding that a
display of the cr`eche in a county courthouse violates the Establishment Clause while
the display of a menorah in front of a county building, in a particular setting next to a
Christmas tree, does not); Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (holding that
“notwithstanding the religious significance of the cr`eche,” its display by the city did
not violate the Establishment Clause). Justice Burger stated:
It would be ironic, however, if the inclusion of a single symbol of a particular
historic religious event, as part of a celebration acknowledged in
the Western World for 20 centuries, and in this country by the people,
by the Executive Branch, by the Congress, and the courts for 2 centuries,
would so “taint” the city’s exhibit as to render it violative of the
Establishment Clause. To forbid the use of this one passive symbol—
the cr`eche—at the very time people are taking note of the season with
Christmas hymns and carols in public schools and other public places,
and while the Congress and legislatures open sessions with prayers by
paid chaplains, would be a stilted overreaction contrary to our history
and to our holdings.
Id. at 686.
28 See Freethought Soc’y of Greater Phila. v. Chester County, 334 F.3d 247, 269 (3d
Cir. 2003) (holding that a Ten Commandments plaque affixed to a courthouse is not
a real threat to the Establishment Clause). The court noted that “the age and history of
the plaque provide a context which changes the effect of an otherwise religious
plaque.” Id. at 264 (citing County of Allegheny, 492 U.S. at 630 (O’Connor, J.,
concurring)).
29 See Marsh, 463 U.S. at 788-89. Justice Burger held that a century-old practice of
opening legislative sessions with a prayer by a chaplain paid with public funds does
not pose a real threat to the Establishment Clause. Id. at 795.
2005] QUOTING THE BIBLE 37
Court;”30 opening a legislative session with a prayer;31 recognizing
the nation in the pledge of allegiance as “one Nation under
God;”32 and printing “In God We Trust” on our money,33 and posting
it in court rooms, Congressional chambers, and other places of
government business. After all, “In God we trust” is our national
motto,34 and Thanksgiving and Christmas are national holidays.35
President Reagan even once proclaimed 1983 the year of the
Bible.36
The privilege of Christian religion is also affirmed and supported
by Congress. For example in 2005, members of Congress
introduced a House resolution directing the Speaker of the House
to display the Ten Commandments in the House Chamber in case
the Supreme Court was to rule that the government display of the
Ten Commandments in public places is unconstitutional.37 Advanced
by Representatives King, Chabot, Bartlett, Norwood, Pitts,
Westmoreland, Blackburn, Fox, Gingrey, Hostettler, Goode, and
Alexander, the resolution was introduced in anticipation of the Supreme
Court ruling on two Ten Commandment cases argued during
the April 2005 term: Van Orden v. Perry38 and McCreary County v.
ACLU.39 The resolution states, among other things, that the House
“recognizes that posting the Ten Commandments in the House
Chamber is a constitutionally protected expression of our Nation’s
heritage and the foundation of our laws.”40 The statement that
biblical commands are the foundation of our laws may come as a
surprise to law school students who, upon entering law school, first
30 County of Allegheny, 492 U.S. at 630 (O’Connor, J., concurring) (reaffirming the
secular purpose of “ceremonial deism” of the phrase, “God save the United States and
this honorable Court,” which, despite its religious roots, does not convey endorsement
of a particular religious belief).
31 Marsh, 463 U.S. at 795. See also Simpson, 404 F.3d at 282 (applying Marsh, which
“teaches[ ] legislative invocations perform the venerable function of seeking divine
guidance for the legislature”). But see Wynne v. Town of Great Falls, 376 F.3d 292,
301-02 (4th Cir. 2004), cert. denied, 125 S. Ct. 2990 (2005) (holding that the Town
Council’s invoking of Jesus Christ while excluding deities associated with other faiths
was “not constitutionally accepted legislative prayer like that approved in Marsh”).
32 4 U.S.C. § 4 (2000).
33 31 U.S.C. § 5112 (2000).
34 36 U.S.C. § 302 (2000).
35 5 U.S.C. § 6103 (1990).
36 S.J. Res. 165, 97th Cong., 96 Stat. 1211 (1982).
37 H.R. Res. 214, 109th Cong. (2005).
38 125 S. Ct. 2854, 2864 (2005) (holding that the display of a monument inscribed
with the Ten Commandments on the Texas state capitol grounds did not violate the
Establishment Clause).
39 125 S. Ct. 2722, 2745 (2005) (holding that displaying the Ten Commandments
at a Kentucky county courthouse violated the Establishment Clause).
40 H.R. Res. 214, 109th Cong. (2005).
38 NEW YORK CITY LAW REVIEW [Vol. 9:31
learn about the history and sources of American law. One of the
most popular law school books on this topic is the Historical Introduction
to Anglo-American Law in a Nutshell.41 In tracing American
legal history, this book starts by pointing out that most of the concepts
of Anglo-American law were developed in the last eight hundred
years,42 thus excluding the Bible as a direct source of our
laws. The book also lays out two main sources of law upon which
the American legal system relies: cases and statutes.43 The Bible is
not mentioned as a source of American law.
The privilege of Christianity as the predominant religion in
the United States is vigorously supported by the media. While the
author was working on this Article, Pope John Paul II died on April
2, 2005.44 Shortly thereafter, on April 11, 2005, Maurice Hilleman,
one of the greatest scientists of modern times, died.45 While Pope
John Paul II was considered by many to be one of the most important
“spiritual leaders and moral teachers of the Modern Era”46
and probably one of the most famous people in the world, microbiologist
Maurice Hilleman remained “the world’s best kept secret.”
47 The discrepancy in the print media coverage of the deaths
of these two important persons speaks for itself and is stunning. A
search of the term “Pope John” in the “Major Newspapers” section
of the Lexis News & Business online database produced 1086 entries
for the period between April 2, 2005, when the Pope died, and
April 3, 2005, when the news was announced. In contrast, a search
for “Maurice Hilleman” in the same database for the period between
April 11, 2005, when the scientist died, and April 12, 2005,
when the news was released, produced only four results: the Balti-
41 FREDERICK G. KEMPIN, JR., HISTORICAL INTRODUCTION TO ANGLO-AMERICAN LAW
IN A NUTSHELL (3d. ed. 1990).
42 Id. at 2.
43 See id. at 95-125. For a detailed explanation of sources of Anglo-American law,
see generally CARLETON KEMP ALLEN, LAW IN THE MAKING (1927); and SIR FREDERICK
POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE
TIME OF EDWARD I (2d ed. 1923).
44 See After 26-Year Reign, Pontiff Dies at 84, CNN, Apr. 2, 2005, http://
www.cnn.com/2005/WORLD/europe/04/02/pope.dies/index.html; Ian Fisher, Pope
John Paul II Dies at 84, N.Y. TIMES, Apr. 3, 2005, at A1.
45 Lawrence K. Altman, Maurice Hilleman, Master in Creating Vaccines, Dies at 85, N.Y.
TIMES, Apr. 12, 2005, at A1.
46 S. Res. 95, 109th Cong. (2005). See also S. Res. 94, 109th Cong. (2005); H.R. Res.
186, 109th Cong. (2005).
47 Patricia Sullivan, Maurice R. Hilleman Dies; Created Vaccines, WASH. POST, Apr. 13,
2005, at B6. Maurice Hilleman “invented over 40 vaccines, including those for
mumps, chickenpox, measles, rubella, hepatitis A and B, meningitis, and countless
variants of the flu virus.” Caroline Richmond, Obituary, Maurice Hilleman; Inventor of
More than 40 Vaccines, INDEPENDENT (London), Apr. 20, 2005, at 35.
2005] QUOTING THE BIBLE 39
more Sun, the New York Times, the Orlando Sentinel, and the Seattle
Times.
While religious expression is recognized as part of American
tradition and history, no court has yet provided a reasonable explanation
of how the passage of time makes religious expression less
religious and more secular so that it becomes a primary source of
constitutional legitimacy.48 The proposition that religious practices
and expressions do not violate the Constitution because they
are accepted by a majority of society or are somehow “secularized”
is a dangerous one.49 The government’s endorsement and use of
religion encourages the oppression of minorities because it makes
religious privilege invisible, allowing the majority in power to use
the law according to its own beliefs.50
Congress is the biggest threat today to both judicial independence
from religion and the court’s traditional role as the interpreter
of the law. Members of Congress introduced the
Constitution Restoration Act of 2005:
Notwithstanding any other provision of this chapter, the Supreme
Court shall not have jurisdiction to review, by appeal, writ
of certiorari, or otherwise, any matter to the extent that relief is
sought against an entity of Federal, State, or local government,
or against an officer or agent of Federal, State, or local government
(whether or not acting in official or personal capacity),
concerning that entity’s, officer’s, or agent’s acknowledgment of
God as the sovereign source of law, liberty, or government.51
48 Charles Gregory Warren, No Need to Stand on Ceremony: The Corruptive Influence of
Ceremonial Deism and the Need for a Separationist Reconfiguration of the Supreme Court’s
Establishment Clause Jurisprudence, 54 MERCER L. REV. 1669, 1691-92 (2003). See also
State v. Ceballos, 832 A.2d 14, 55 (Conn. 2003) (Zarella, J., concurring in part and
dissenting in part).
[N]ot all religious references, including allusions to the Bible, God or
other biblical characters, are impermissible. This is because many
words and phrases traditionally viewed as religious in nature or derived
from religious sources have become, over time, an integral part of the
English language, and no longer may be recognized by either prosecutors
or jurors as having purely religious connotations or derivations.
Consider, for example, the phrases “raising Cain” and “for whatever a
man sows, that he will also reap.” Both phrases are common expressions
derived from the Bible. Still other expressions, such as “an eye for
an eye,” have both religious and secular origins.
Id. (citation omitted).
49 Warren, supra note 48, at 1692-93.
50 See generally Duncan, supra note 21.
51 S. 520, 109th Cong. (2005); see also H.R. 1070, 109th Cong. (2005). The Constitution
Restoration Act was first introduced during the 108th Congress. See S. 2082,
108th Cong. (2004); S. 2323, 108th Cong. (2004); H.R. 3799, 108th Cong. (2004).
During the 108th Congress, many other bills and resolutions were introduced recog40
NEW YORK CITY LAW REVIEW [Vol. 9:31
By imposing its own religious values, the conservative religious
right movement is destroying two of the most important values of
American society: tolerance and pluralism.52 Attempts by conservative
members of Congress to deprive the Supreme Court and the
federal courts of their jurisdiction in solving disputes with religious
subject matter are without precedent in our history. These attempts
undermine the long-standing principle of judicial review articulated
in Marbury v. Madison.53 At the same time, courts’ use of
religious references and religious convictions in their decisionmaking
is on the rise.54
It is hardly worth noting that, in a society with a Christian majority,
the majority of judges are Christians.55 The power of the
nizing the privilege of Christianity. See also H.R.J. Res. 39, 108th Cong. (2004) (constitutional
amendment proposing “[a] law that prescribes the Pledge of Allegiance or
provides for United States coins or currency is not a law respecting an establishment
of religion because it refers to God in the Pledge or includes a reference to God on
coins or currency.”); S. 1558, 108th Cong. (2003) (Religious Liberties Restoration Act
proposing: the power to display the Ten Commandments on government property;
the power to recite the Pledge of Allegiance on government property; the power to
recite the national motto “In God We Trust” on government property; and the power
to except this subject matter from the jurisdiction of federal courts inferior to the
Supreme Court); S. Con. Res. 91, 108th Cong. (2004) (proposing to designate April
2005 as American Religious History Month and requesting that “the President issue a
proclamation calling upon the people of the United States to observe the year with
appropriate ceremonies and activities”).
52 Abraham H. Foxman, Foreword to ANTI-DEFAMATION LEAGUE, THE RELIGIOUS
RIGHT: THE ASSAULT ON TOLERANCE AND PLURALISM IN AMERICA, at iii-iv (1994). This
book provides an insight into the grassroots organizing and political commitment of
the religious right that led to its enormous power and influence over all three
branches of the government in the 1990s. The author defines the religious right as
an:
array of politically conservative religious groups and individuals who are
attempting to influence public policy based on shared cultural philosophy
that is antagonistic to pluralism and church/state separation. The
movement consists mainly of Protestants, most of them evangelical or
fundamentalist, a far smaller number of Catholics, and a smattering of
Jews.
Id. at 7.
53 See Marbury v. Madison, 5 U.S. 137, 177 (1803). “It is emphatically the province
and duty of the judicial department to say what the law is.” Id.
54 See infra Appendix.
55 The first Jewish Justice of the Supreme Court, Louis D. Brandeis, was appointed
in 1916 by President Wilson. See Ruth Bader Ginsburg, From Benjamin to Brandeis to
Breyer: Is There a Jewish Seat?, 41 BRANDEIS L.J. 229, 233 (2002). See also Religious Affiliation
of the U.S. Supreme Court, http://www.adherents.com/adh_sc.html (last modified
Jan. 31, 2006) (noting that with the confirmation of Samuel Alito, the Supreme Court
consists of seven Christian (Alito, Kennedy, Roberts, Scalia, Souter, Stevens, and
Thomas) and two Jewish (Breyer and Ginsburg) justices). Statistics show that the Supreme
Court is 78% Christian, with a Catholic majority of 56%; while 76.5% of the
total U.S. population is affiliated with Christianity. Id.
2005] QUOTING THE BIBLE 41
courts to use religious references as they see fit should not be underestimated.
Speaking about the power of judicial review, Alexander
Bickel once said, “[t]he least dangerous branch of the
American government is the most extraordinarily powerful court
of law the world has ever known.”56 Judges should be mindful of
the power they are vested with and the public trust in their impartiality
and refrain entirely from using religious references in their
decision-making. Judges are bound by the Code of Judicial Conduct,
which, in addition to its canons requiring that judges uphold
the integrity, independence, and impartiality of the judiciary,57
clearly states:
A judge shall perform judicial duties without bias or prejudice.
A judge shall not, in the performance of judicial duties, by
words or conduct, manifest bias or prejudice, including but not
limited to bias or prejudice based upon race, sex, religion, national
origin, disability, age, sexual orientation or socioeconomic
status, and shall not permit staff, court officials and
others subject to the judge’s direction and control to do so.58
The arbitrariness, inconsistency, and lack of law on the use of religious
references in decision-making are some of the main reasons
why such use should be proscribed.
I. RELYING ON THE BIBLE IN CRIMINAL SENTENCING
While the use of religious references in judicial decision-making
is generally unjustified and inappropriate, the most disturbing
and harmful invocation of the Bible takes place in criminal sentencing
decisions. The Bible is regularly quoted during the criminal
sentencing phase of trials by prosecutors and defense attorneys.
In their closing arguments, both sides often invoke the Bible in
order to convince juries that defendants deserve or do not deserve
punishment. Even those defendants who do not wish to use biblical
passages in their closing arguments, or for whom such use may
be inappropriate, are coerced into doing so in response to
prosecutorial use of religion. Such biblical invocation poses a great
threat to a defendant’s constitutional rights.59 However, attorneys
56 ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT
THE BAR OF POLITICS 1 (2d. ed. 1986).
57 ANNOTATED MODEL CODE OF JUDICIAL CONDUCT Canons 1 & 3 (2004).
58 Id. at Canon 3 (B)(5).
59 See generally Marcus S. Henson, Carruthers v. State: Thou Shalt Not Make Direct
Religious References in Closing Argument, 52 MERCER L. REV. 731 (2001). But see Elizabeth
A. Brooks, Thou Shalt Not Quote the Bible: Determining the Propriety of Attorney Use of
Religious Philosophy and Themes in Oral Arguments, 33 GA. L. REV. 1113 (1999).
42 NEW YORK CITY LAW REVIEW [Vol. 9:31
are not alone in quoting the Bible. They are increasingly joined by
trial judges, who use religious references in their decision-making
process and their written opinions.60
While no court has yet specifically addressed whether judicial
reliance on religious convictions in written opinions violates the
Establishment Clause,61 some courts have considered the issue of
whether a defendant’s due process rights are violated when judges
rely on religious convictions or religious texts during the sentencing
phase. In one well-publicized case, televangelist James O. Bakker,
convicted of fraud and conspiracy, challenged his forty-fiveyear
sentence claiming a due process violation because the trial
judge made personal religious remarks during sentencing.62 The
Fourth Circuit held that the trial judge’s comment, “[h]e had no
thought whatever about his victims and those of us who do have a
religion are ridiculed as being saps from money-grubbing preachers or
priests,” made during sentencing, violated Bakker’s due process.63
The Bakker court recognized that the Constitution does not require
judges to relinquish their religious beliefs when they assume the
office, but it stated that “[c]ourts, however, cannot sanction sentencing
procedures that create the perception of the bench as a
pulpit from which judges announce their personal sense of religiosity
and simultaneously punish defendants for offending it.
Whether or not the trial judge has a religion is irrelevant for purposes
of sentencing.”64 While Bakker does not involve explicit religious
reference by a judge, it serves as a good example of a decision
validating the utmost importance of judicial impartiality. However,
judges differ on their approach to the use of religious references
by their colleagues.
The Ohio case of James Arnett is illustrative of the opposing
views that judges hold about the use of religious references in judicial
decision-making. James Arnett was sentenced to fifty-one years
in prison after pleading guilty to ten counts of rape and one count
of pandering obscenity to the minor daughter of his live-in girl-
60 See Lis Wiehl, Judges and Lawyers Are Not Singing from the Same Hymnal When It
Comes to Allowing the Bible in the Courtroom, 24 AM. J. TRIAL ADVOC. 273, 274 (2000).
61 Modak-Truran, supra note 3, at 783. For a discussion about the lack of Establishment
Clause violation challenges in capital cases involving religion during the penalty
phase, closing arguments, and jury deliberations, see Gary J. Simson & Stephen P.
Garvey, Knockin’ on Heaven’s Door: Rethinking the Role of Religion in Death Penalty Cases,
86 CORNELL L. REV. 1090, 1104-30 (2001).
62 United States v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991).
63 Id. at 740-41.
64 Id. at 740.
2005] QUOTING THE BIBLE 43
friend.65 On appeal, the court remanded for resentencing, holding
that the trial judge acted outside the state’s sentencing
guidelines and that she violated the defendant’s due process when
she used a specific text from the Bible as a determining factor in
sentencing.66 The trial judge explained to the defendant that
when she had recently imposed a twenty-year sentence for a murder,
at least the victim was gone and there was no pain to suffer,
but in his case the victim would hurt for the rest of her life.67 The
judge proceeded by describing her struggle the night before the
sentencing decision about what sentence to impose when she
found the answer in a biblical passage.68 The judge then quoted a
passage from Matthew 18:5-6:
“And whoso shall receive one such little child in my name, [sic]
receiveth me. But, [sic] whoso shall offend one of these little
ones which believe in me, it were better for him that a millstone
were hanged about his neck, and that [sic] he were drowned in
the depth of the sea.”69
It is interesting to note that Judge Painter, who wrote the Ohio
Court of Appeals opinion, added a footnote after the above quotation,
in which he noted:
We must quote from the trial transcript, which is not entirely
consistent with the Bible, King James Version. The notation
“sic” indicates instances where words should have been italicized
and where commas should not have been added. We assume
that the court reporter added these errors and that the judge
read the passage correctly.70
The apologetic tone of this footnote about quoting from a nonauthoritative
version of the Bible and the care taken to achieve
compliance with the King James Version is most striking. The authoritativeness
of the King James Version71 appears to be self-evident
for readers familiar with Christian religious texts, but this is
most peculiar for someone who does not belong to that majority.
It is not entirely clear why the judge took such care to correct the
65 State v. Arnett, Nos. C-980172, C-980173, 1999 WL 65632, at *1 (Ohio Ct. App.
Feb. 5, 1999), cert. denied 126 S. Ct. 207 (2005).
66 Id. at *2.
67 Id. at *1.
68 Id.
69 Id.
70 Id. at *1 n.1.
71 More than fifty English translations were printed before the King James Bible
was published in 1611. DAVID CRYSTAL, THE STORIES OF ENGLISH 271-75 (2004). The
King James Version, popularly known as the “Authorized Version,” was selected to be
read in churches. Id. Most of its vocabulary and phrasing derived from the first English
translation by William Tyndale, printed in 1525-1526. Id.
44 NEW YORK CITY LAW REVIEW [Vol. 9:31
errors, namely italics and misplacement of commas, or why there
was a concern with whether the judge read the passage correctly. It
seems almost as if there was a legal requirement that when a court
cites the Bible, the King James Version must be used.
After the state appealed, the Ohio Supreme Court reinstated
the sentence, holding that a sentencing judge’s quotation of a religious
text and the acknowledgement of its use during the deliberation
process is not impermissible per se and does not violate a
defendant’s due process.72 The defendant petitioned for a writ of
habeas corpus claiming a violation of the First Amendment Establishment
Clause and his due process rights.73 The district court
held that the First Amendment claim was waived due to failure to
include it in a brief and argument before the state appellate court,
but that the judge’s reliance on a biblical passage as the final
source for determining the sentence warranted conditional habeas
relief until resentencing by a different judge.74
Subsequently, the Sixth Circuit dismissed the habeas petition,
holding that the trial judge’s quotation of Matthew 18:5-675 in determining
the sentence did not violate the defendant’s due process
right because the biblical passage relied upon was just an “additional”
source, rather than the “final” source of the decision.76
However, the dissent noted that the trial judge’s reliance on the
New Testament provision to determine the sentence was dispositive
because, according to the record, the judge admitted that her
struggle over the final sentence was answered by this biblical passage.
77 Relying on Bakker, the dissent concluded that the use of a
religious text as an authoritative source for reaching a legal result
violated the defendant’s fundamental expectation of due process
and expressed this related concern:
If the Constitution sanctions such direct reliance on religious
sources when imposing criminal sentences, then there is nothing
to stop prosecutors and criminal defense lawyers from regularly
citing religious sources like the Bible, the Talmud, or the
Koran to justify their respective positions on punishment. The
72 State v. Arnett, 724 N.E.2d 793, 804 (Ohio 2000), cert. denied 126 S. Ct. 207
(2005).
73 Arnett v. Jackson, 290 F. Supp. 2d 874, 875 (S.D. Ohio 2003). The court found
that the Magistrate Judge correctly applied the standard of review set forth in the
Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d). Id. at 877-78.
74 Id. at 878.
75 Arnett v. Jackson, 393 F.3d 681, 684 (6th Cir. 2005), cert. denied 126 S. Ct. 207
(2005).
76 Id. at 688.
77 Id. at 689 (Clay, J., dissenting).
2005] QUOTING THE BIBLE 45
judge would be placed in the position of not only considering
statutory sentencing factors, but also deciding which religious
texts best justify a particular sentence. Under this approach, the
judgments of trial courts could begin to resemble the fatwas of
religious clerics, and the opinions of appellate courts echo the
proclamations of the Sanhedrin.78
The Sixth Circuit’s conclusion that “[t]here is nothing in the
totality of the circumstances of Arnett’s sentencing to indicate that
the trial judge used the Bible as her ‘final source of authority,’ as
found by the district court,”79 is contrary to the trial judge’s own
words:
Because I was looking for a source, what do I turn to, to make,
to make that determination, what sentence you should get . . . .
And in looking at the final part of my struggle with you, I finally
answered my question late at night when I turned to one additional
source to help me.80
Although the trial judge said she turned to “one additional
source,” she used the words “make that determination” when she
referred to the sentence to impose.81 More importantly, she used
the words “final part” and “finally answered” which clearly emphasized
that the finality of her sentencing decision was solved by that
one additional source.82 The plain meaning of the language “final”
and “finally” was simply dismissed by the Sixth Circuit. The
court justified its conclusion by reasoning that, “The [b]iblical
principle of not harming children is fully consistent with Ohio’s
sentencing consideration to the same effect.”83 The fact that the
judge did not impose the maximum sentence commanded by the
Bible proved that she did not actually sentence the defendant
based upon her religious belief.84
As is obvious from the Arnett case, courts often justify the use
of religious references on the grounds of consistency with the statutory
law applied in the case. That is an unnecessary and disturbing
practice. In considering the defendant’s due process
78 Id. at 691 (Clay, J., dissenting).
79 Id. at 688.
80 Id. at 684.
81 Id. In discussing what constitutes reliance on religious convictions, Kent Greenawalt
states, “[t]he clearest instances of reliance on religious convictions occur when
the person is certain that he would make a different choice if he disregarded those
convictions. . . . A person is clearly not relying on religious convictions when his
choice rests firmly on independent grounds.” GREENAWALT, RELIGIOUS CONVICTIONS,
supra note 2, at 36.
82 Arnett, 393 F.3d at 684.
83 Id. at 688.
84 Id.
46 NEW YORK CITY LAW REVIEW [Vol. 9:31
violation claim in Arnett, the Sixth Circuit used the Supreme Court
rule that a defendant’s due process rights are violated when the
death sentence is based on “factors that are constitutionally impermissible
or totally irrelevant to the sentencing process, such as for
example the race, religion or political affiliation of the defendant.”
85 The Sixth Circuit then said, without any additional explanation,
that the trial judge in Arnett did not base her decision on an
impermissible factor, and that the factor used was not “totally irrelevant”
because it was consistent with the sentencing statute.86 Nevertheless,
before it reversed and remanded the case, the Sixth
Circuit recognized the following: “We reach this conclusion despite
the fact that reasonable minds could certainly question the propriety
of the trial judge making mention of the Bible at all in her
sentencing decision.”87 Whether the biblical passage quoted in an
opinion is consistent or inconsistent with the statutory provision
governing the case is irrelevant and, as such, should not be considered
or included in a written opinion justifying a decision.
Another example of the judicial use of biblical passages in
criminal sentencing is the Nebraska case State v. Pattno.88 In Pattno,
the defendant pled guilty to the sexual assault of a child and was
sentenced to a minimum of twenty months and a maximum of five
years in prison by the trial court judge.89 Before he imposed the
sentence, the trial judge recited an extensive biblical scripture
against homosexuality90 followed by the comment that he also con-
85 Id. at 686 (quoting Zant v. Stephens, 462 U.S. 862, 885 (1983)).
86 Id. at 686-87.
87 Id. at 688.
88 579 N.W.2d 503 (Neb. 1998).
89 Id. at 506.
90 Id. at 505-06.
Ever since the creation of the world his invisible nature, namely, his
external power and deity, has been clearly perceived in the things that
have been made. So they are without excuse; for although they knew
God they did not honor him as God or give thanks to him as God, but
they became futile in their thinking and their senseless minds were
darkened. Claiming to be wise, they became fools, and exchanged the
glory of the immortal God for images resembling mortal man or birds
or animals or reptiles. Therefore God gave them up in the lusts of their
hearts to impurity, to the dishonoring of their bodies among themselves,
because they exchanged the truth about God for a lie and worshiped
and served the creature rather than the Creator, who is blessed
for ever [sic]. Amen. For this reason God gave them up to dishonorable
passions. Their women exchanged natural relations for unnatural,
and the men likewise gave up natural relations with women and were
consumed with passion for one another, men committing shameless
acts with men and receiving in their own persons the due penalty for
their error.
2005] QUOTING THE BIBLE 47
sidered the “nature . . . of the defendant.”91 The Nebraska Supreme
Court held that a reasonable person could have questioned
the trial judge’s impartiality because he relied upon his personal
religious beliefs in deciding the sentence.92 The court also pointed
out that the defendant was convicted of having sexual contact with
a minor, which is a crime, and not of having sexual contact with a
person of the same gender, which is not a crime in the state of
Nebraska.93
It is not unusual for judges to inject biblical passages in their
opinions as justification for supporting the harsh punishment of
certain crimes such as child sexual abuse. In People v. Jagnjic, the
defendant pleaded guilty to aggravated sexual abuse of a child and
was sentenced to no less than five and no more than fifteen years
in prison.94 However, the New York Appellate Division found that,
absent a professional psychiatric evaluation, the sentence was excessive.
95 In a dissenting opinion, Justice Lupiano pointed to the
heinous nature of the crime, arguing that the sentencing decision
should not be disturbed and quoted a biblical passage to support
that view:
The condemnation of crimes against the young is deeply ingrained
in the ethical and moral history of western civilization.
Indeed, the bible is replete with references to this universal condemnation
as, for example, the following scriptural passage concerning
children—“Whosoever shall offend one of these little
ones . . . it were better than a millstone were hanged about his
neck, and that he were drowned in the depth of the sea” (Matthew
18:6).96
Quoting the Bible in support of a judicial decision is in clear violation
of the judicial code, and it prejudices defendants not only by
the content of the religious reference, but by the very fact that an
irrelevant, extralegal source is used in the decision-making process.
Id. (quoting the Bible).
91 Id. at 506.
92 Id. at 509.
93 Id. at 508.
No statute in this state criminalizes sexual contact between consenting
adults of the same gender. Thus, Pattno’s crime is that he had sexual
contact with a minor; not that he had sexual contact with another male.
Therefore, the biblical scripture which the judge read was not relevant
to the crime to which Pattno pled guilty, and it should not have been
considered by the judge in determining an appropriate sentence.
Id.
94 447 N.Y.S.2d 439, 439 (App. Div. 1982).
95 See id. at 439-40.
96 Id. at 443 (Lupiano, J., dissenting).
48 NEW YORK CITY LAW REVIEW [Vol. 9:31
As the Arnett, Pattno, and Jagnjic cases illustrate, any reliance on the
Bible as a direct or supporting source of authority in the decisionmaking
process jeopardizes the integrity of the criminal justice system
and, if not proscribed, encourages further use of the Bible by
judges and other officers of the court.
II. UNDERMINING THE RELIGIOUS CHARACTER
OF RELIGIOUS REFERENCES
There are many cases where judicial reference to a biblical
passage is justified by the use of language that undermines the religious
character of the text or its authority.97 This type of qualifying
statement is in direct contradiction to the actual meaning of
the text and to courts’ use of the Bible to support their arguments
in countless cases in which the biblical references are used in their
proper meaning. It is only logical to conclude that any use of biblical
references in judicial decision-making, especially in written
opinions, must be entirely arbitrary. On one hand, judges invoke
the Bible as serious support for their propositions, and, on the
other, their use of the Bible is trivialized. Judge Hildebrandt, who
dissented in the State v. Arnett Ohio Court of Appeals decision finding
a violation of due process, used the “mere”98 language justifica-
97 By qualifying a statement with “mere” or “merely,” courts undermine the religious
value of the source from which the quotation is taken, despite the fact that the
Bible is cited as the authority. This trend is consistent with the Supreme Court’s “secularization”
of religious expressions. See generally Ashley M. Bell, “God Save This Honorable
Court”: How Current Establishment Clause Jurisprudence Can Be Reconciled with the
Secularization of Historical Religious Expressions, 50 AM. U. L. REV. 1273 (2001). Bell
criticizes the Supreme Court’s secularization approach to religious expression:
In addition to being an inconsistent solution, secularization does a great
disservice to both religion and society. . . . Moreover, the Court seems
more apt to secularize practices derived from Christianity, thus preferring
Christianity over other religions. This consequence results in ‘religious
divisiveness, violating the fundamental principles behind the
religion clauses.’ Thus, the entire purpose of secularization backfires in
its process. While attempting to neutralize religious influence, the
Court in actuality prefers some religions, namely Christianity, over
others.
Id. at 1305-07. This critique is consistent with the famous quote of the Supreme Court
that, “The Ten Commandments are undeniably a sacred text in the Jewish and Christian
faiths, and no legislative recitation of a supposed secular purpose can blind us to
that fact.” Stone v. Graham, 449 U.S. 39, 41 (1980).
98 The Oxford English Dictionary defines “mere” and “merely” as follows: “mere-
Having no greater extent, range, value, power, or importance that the designation
implies; that is barely or only what it is said to be;[ ] insignificant, ordinary, foolish,
inept” and “merely-Without any other quality, reason, purpose, view, etc.; only (what
is referred to) and nothing more.” SHORTER OXFORD ENGLISH DICTIONARY ON HISTORICAL
PRINCIPLES 1750 (5th ed. 2002).
2005] QUOTING THE BIBLE 49
tion twice in a very short opinion. Hildebrandt stated that “[t]he
language quoted from the Bible merely reflects society’s interests
in protecting its most vulnerable citizens, a laudable goal that is
incorporated into the sentencing guidelines enacted by the General
Assembly.”99 The dissent concluded, “[t]he mere citation of
scriptural material in pronouncing the sentence should not be permitted
to obscure the fact that the trial judge based her decision
on the proper statutory considerations and that the defendant has
failed to demonstrate that any prejudice resulted from the judge’s
statements.”100
In reinstating the sentence, Supreme Court of Ohio Judge
Cook used the “mere” language to distinguish general principles
from personal beliefs: “Several state supreme courts, though they
cite Bakker with approval, have declined to vacate sentences where
the judge’s religious comments merely acknowledge generally accepted
principles, as opposed to highly personal religious beliefs
that become the basis for the sentence imposed.”101 In conclusion,
the court found that “Arnett’s sentencing judge cited a religious
text merely to acknowledge one of several reasons—‘one additional
source’—for assigning significant weight to a legitimate statutory
sentencing factor.”102 The court’s distinguishing of Bakker
from Arnett is unpersuasive when it states that “Bakker merely prohibits
a judge’s personal religious principles from being ‘the basis of
a sentencing decision.’”103 There is no explanation of how the
trial judge’s personal religious principles in Arnett were not implicated
within the general principles when she turned to the book of
Matthew for final help in determining the sentence.
A judge’s personal perception of the meaning of biblical
passages seems to be crucial in determining whether the use of the
Bible is authoritative or symbolic. A judge’s use of the word “mere”
often determines whether a defendant’s due process challenge succeeds.
For example, in State v. Cribbs, the Tennessee Supreme
Court affirmed the death sentence of a defendant convicted of premeditated
first degree murder.104 On appeal, the defendant argued
that the prosecution’s use of biblical references to justify the
death sentence violated his due process rights.105 The state argued
99 Arnett, 1999 WL 65632, at *3 (Hildebrandt, J., dissenting).
100 Id.
101 Arnett, 724 N.E.2d at 803.
102 Id.
103 Id. at 804.
104 967 S.W.2d 773, 776 (Tenn. 1998).
105 Id. at 783.
50 NEW YORK CITY LAW REVIEW [Vol. 9:31
that although biblical quotations were impermissible, the prosecutor’s
use of the language “‘whatever a man sows, so shall he reap’
was merely a metaphor for individual accountability, rather than a
justification for imposition of the death penalty.”106 Noting that a
biblical reference in this case was inappropriate, the court nevertheless
accepted the state’s argument finding that it did not
prejudice the defendant.107 The court justified its finding by calling
attention to the consistency of the biblical principle with the
statute: “[W]e view the comments by the prosecutor which implied
that Tennessee law embraced the principle of ‘reap what you sow’
as merely an extension of that metaphor.”108
Similarly, the dissent in People v. Harlan used the “merely”
phraseology to point out the trial court’s misquoting of biblical
passages in the trial record. Harlan was sentenced to death for
first-degree murder, but his sentence was vacated because the jury
was permitted to bring “the Bible into the jury room to share with
others the written Leviticus and Romans texts during the deliberation.”
109 According to the dissent, the trial court concluded that
one of the jurors used Romans 13:1, “which requires that one look
at government authorities as God’s representative on earth and follow
their lead as agents of ‘wrath to bring punishment to the
wrongdoer.’”110 The dissent did not contest that the juror used
Romans 13:1, but it explained that the passage “merely states ‘Let
every soul be subject to the governing authorities for there is no
authority except from God and the authorities that exist are appointed
by God.’”111 The judge said that the trial court actually
imported the language “wrath to bring punishment to the wrongdoer”
from Romans 13:4 and criticized the majority for not correcting
“these overstatements.”112 The thrust of the Romans
passage is an absolute submission to the authorities—and only
those established by God. The trial court’s use of language from
106 Id.
107 Id. at 784.
108 Id.
109 109 P.3d 616, 632 (Colo. 2005). This case immediately caught the attention of
the media. See Kirk Johnson, Colorado Court Bars Execution Because Jurors Consulted Bible,
N.Y. TIMES, Mar. 29, 2005, at A1; Thane Rosenbaum, Is Court a Place for Morals?, L.A.
TIMES, Mar. 30, 2005, at B11; Eric Gorski, Book, Not Faith, Broke Court Rules, DENV.
POST, Mar. 30, 2005, at 1A; Suzanne Goldenberg, US Jury’s Bible Death Sentence Quashed,
GUARDIAN, Mar. 30, 2005, at 11; Bible-Influenced Death Penalty Ruling Rejected, IRISH
TIMES, Mar. 30, 2005, at 10.
110 Harlan, 109 P.3d at 635 (Rice, J., dissenting).
111 Id.
112 Id.
2005] QUOTING THE BIBLE 51
Romans 13:4 about the consequences of wrongdoing that would be
imposed by God’s appointees neither changed the nature of the
command from Romans 13:1 nor undermined the main idea of divine
authority this biblical passage conveyed. The juror’s reference
to Romans 13:1 alone was sufficient as an improper invocation of an
extra-legal authority and cannot be undermined by the dissent’s
language “merely states.” This case exemplifies how a judge’s personal
view and interpretation of the Bible may affect the outcome
of a case.
There are many other ways courts qualify the use of religious
references in order to find it justifiable or to undermine the impact
of such references. One example of the characterization of
the use of a biblical passage is found in Bussard v. Lockhart.113 In
that case, the court denied a habeas petition for a defendant who
escaped from arrest after committing murder, remaining at-large
for four years.114 The prosecutor in Bussard used a biblical passage
to support the inference of guilt from the escape: “Proverbs 28:1
fits it just as clear as it can be. ‘The guilty flee when no man pursueth
while the righteous stand bold as a lion.’ He fled to avoid
coming to trial. That shows guilt.”115 In addressing the use of the
biblical passage, the court stated:
The prosecutor did not use the Bible to invoke the wrath of God
against Bussard or to suggest that the jury apply divine law as an
alternative to the law of Arkansas. Instead, the prosecutor simply
resorted to Proverbs for a more poetic version of a commonsense
connection expressly recognized by Arkansas law: flight
suggests consciousness of guilt.116
The court cited two cases Killcrease v. State117 and Ward v. State118 in
support of the proclamation that Arkansas law expressly recognizes
that flight suggests consciousness of guilt.119 A careful reader will
notice, however, that only in the Killcrease case was there an issue of
flight from arrest.120 Although in Ward the court discussed the fact
that the defendant fled the scene upon the arrival of the police,
nowhere did the court indicate that the flight was an issue in the
case, nor did it state a particular rule related to flight other than “it
113 32 F.3d 322 (8th Cir. 1994).
114 Id. at 323.
115 Id. at 324.
116 Id.
117 836 S.W.2d 380, 382 (Ark. 1992) (flight from arrest corroborates other evidence
of guilt).
118 816 S.W.2d 173, 175 (Ark. Ct. App. 1991) (flight from scene of crime).
119 Bussard, 32 F.3d at 324.
120 Killcrease, 836 S.W.2d at 381.
52 NEW YORK CITY LAW REVIEW [Vol. 9:31
may be considered with other evidence in determining guilt.”121 In
Killcrease, the defendant was convicted of raping his minor daughter
and sentenced to life in prison. On appeal he contended that
the evidence of his arrest in Louisiana was irrelevant because no
warrant was issued or any charges filed when he left Arkansas.122
The court held that it was up to a jury to determine whether the
defendant fled to avoid arrest and that “[f]light to avoid arrest may
be considered by the jury as corroboration of evidence tending to
establish guilt.”123 In support of this rule, the Killcrease court cited
two opinions, Riddle v. State and Ferguson v. State.124
The long line of cases using this rule leads to Stevens v. State,
the first case that formulated it as follows: “Flight of the accused is
admissible as a circumstance in corroboration of evidence tending
to establish guilt.”125 Although many courts followed the rule as
articulated in Stevens,126 the court in Ferguson changed the language
by omitting the word “circumstance” from its holding that flight
may “be considered as corroboration of evidence tending to establish
guilt.”127 The difference between the biblical proverb used by
the prosecutor in Bussard to support the demonstration of guilt
and the rule as originally formulated by the Supreme Court of Arkansas
is evident. The language in the proverb sends the message
that fleeing is evidence of guilt, while the language of the court’s
rule states that fleeing may be considered as a circumstance in corroboration
of evidence tending to prove guilt. Even if one compares
the modified language of the rule that fleeing suggests
consciousness of guilt, the difference is still insufficient for the
court to conclude that the biblical passage was a “poetic version” of
the rule. The Bussard case is an illustration of the judicial slippage
from biblical text to legal rules without realizing the impact such
conflation actually has on the life of a human being. Concerned
with the confounding of morality and law, Justice Oliver Wendell
Holmes said in his famous essay The Path of the Law, “[t]he law is
full of phraseology drawn from morals, and by the mere force of
language continually invites us to pass from one domain to the
other without perceiving it, as we are sure to do unless we have the
121 See Ward, 816 S.W.2d at 175.
122 Killcrease, 836 S.W.2d at 382.
123 Id.
124 Id. (citing Riddle v. State, 791 S.W.2d 708 (Ark. 1990), and Ferguson v. State,
769 S.W.2d 418 (Ark. 1989)).
125 221 S.W. 186, 188 (Ark. 1920).
126 See Smith v. State, 238 S.W.2d 649, 655 (Ark. 1951); Mason v. State, 688 S.W.2d
299, 300 (Ark. 1985); Yedrysek v. State, 739 S.W.2d 672, 675 (Ark. 1987).
127 Ferguson, 769 S.W.2d at 419.
2005] QUOTING THE BIBLE 53
boundary constantly before our minds.”128
However, there are a variety of ways in which religious references
are used in the decision-making process and in reasoning
justifying decisions. Courts quote the Bible in order to support
their propositions and to show that they are consistent with traditional
morality. They sometimes use biblical passages as metaphors
or to illuminate a particular common law principle. The Bible
often becomes part of the historical explanation of a particular law
or practice. In some instances, a biblical passage appears as a rule
upon which a decision is based or accompanies a common law or
statutory rule as a confirmation of the consistency of our law. The
next part will show different ways in which the Bible is used in judicial
opinions.
III. QUOTING THE BIBLE FOR VARIOUS PURPOSES
In some instances, judges use the Bible to express their personal
religious and moral beliefs, and former Chief Justice Moore
of the Supreme Court of Alabama may be the best example of this
practice. In Ex parte H.H., a lesbian ex-wife was denied custody of
her children despite the fact that there was evidence of her exhusband’s
excessive disciplinary punishment of children.129 Justice
Moore’s special concurring opinion is an illustration of inappropriate
judicial decision-making using the Bible as law. He starts his
opinion with a strong statement:
[T]he homosexual conduct of a parent—conduct involving a
sexual relationship between two persons of the same gender—
creates a strong presumption of unfitness that alone is sufficient
justification for denying that parent custody of his or her own
children or prohibiting the adoption of the children of
others.130
Justice Moore’s perspective that a parent’s homosexual conduct is
unfit per se is founded entirely on religious teachings against samesex
sexual relationships.131 Unlike the gender-based tender years
presumption that the Supreme Court of Alabama found unconstitutional,
132 the sexual orientation-based presumption is still valid
in some states.133 The main justification for the per se rule is ex-
128 Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 459-60
(1897).
129 830 So. 2d 21, 25-26 (Ala. 2002).
130 Id. at 26.
131 See Romans 1:18-32 (New International).
132 See Ex parte Devine, 398 So. 2d 686, 696-97 (Ala. 1981).
133 See, e.g., Roe v. Roe, 324 S.E.2d 691 (Va. 1985). Some courts require that a
54 NEW YORK CITY LAW REVIEW [Vol. 9:31
plained by Justice Moore: “Homosexual conduct is, and has been,
considered abhorrent, immoral, detestable, a crime against nature,
and a violation of the laws of nature and of nature’s God upon
which this Nation and our laws are predicated.”134 Justice Moore
finds support for his proposition in Blackstone’s Commentaries135
and proceeds to quote from the Bible and various other sources
condemning homosexuality.136 He concludes his opinion with the
following words: “The common law adopted in this State and upon
which our laws are premised likewise declares homosexuality to be
detestable and an abominable sin. Homosexual conduct by its very
nature is immoral, and its consequences are inherently destructive
to the natural order of society.”137
By quoting biblical passages in support of their decisions,
judges like Justice Moore perpetuate homophobia and the legitimacy
of laws based on religious morality138 without any concern for
the parties involved and the actual legal standards governing our
society. One of those standards directly disregarded by Justice
Moore in the Ex parte H.H. case is the best-interest-of-the-child standard.
This case demonstrates the judicial misconduct present in
invoking personal religious beliefs and morality as a basis of judgment.
It is most interesting that Justice Moore was never disciplined
for basing his decisions on his personal religious beliefs, but
was actually removed when he refused to comply with a court order
to remove the Ten Commandments monument he displayed in the
rotunda of the state judicial building.139 In commenting on the
controversy around Justice Moore, one author contrasted the invisibility
of the judicial use of religious references to the physical appearance
of impropriety, making the following point:
parent involved in a same-sex relationship prove absence of harm. See, e.g., Thigpen v.
Carpenter, 730 S.W.2d 510, 513-14 (Ark. 1987). Other courts use a “nexus test” requiring
only proof that a parent’s sexual conduct will have or has had an adverse
impact. See, e.g., A.C. v. C.B., 829 P.2d 660, 664 (N.M. Ct. App. 1992).
134 Ex parte H.H., 830 So. 2d at 26.
135 Id. at 32, 34, 37.
136 Id. at 33-37 (quoting biblical passages Genesis 1:27, 2:24; Leviticus 20:13).
137 Id. at 38.
138 See Bowers v. Hardwick, 478 U.S. 186 (1986). Upholding a Georgia sodomy statute,
the Court stated that “[p]roscriptions against that conduct have ancient roots,”
referring to Judeo-Christian moral standards. Id. at 192. Concurring Justice Burger
reiterated that, “Condemnation of those practices is firmly rooted in Judeao-Christian
[sic] moral and ethical standards,” id. at 196, validating the state’s invocation of the
biblical books of Leviticus and Romans to justify the sodomy statute, id. at 211 (Blackmun,
J. dissenting).
139 See Glassroth v. Moore, 278 F. Supp. 2d 1272, 1275 (M.D. Ala. 2003), aff’d 335
F.3d 1282 (11th Cir. 2003), cert. denied 540 U.S. 1000 (2003).
2005] QUOTING THE BIBLE 55
While the plaintiffs, media, and judicial ethicists were earnestly
setting their sights on this highly conspicuous jurist, they were
devoting little if any attention to the question of the proper relationship
between religion and the decisions judges actually
render, including religiously devout judges like Chief Justice
Moore. To be sure, the Chief Justice’s fundamental mistake, at
least from a job retention perspective, appears not to have been
his firm and guiding belief that God’s law ought to inform
human law, or even his clear expression of that belief in judicial
opinions, which is to say that he was not and would not obviously
have been removed from office for actually implementing
and manifesting his religious beliefs in his judicial capacity. His
apparent mistake, instead, was to manifest them by erecting a
granite monument in his administrative, and in many respects
less important or less influential, role.140
Often courts use biblical references to explain the historical
background of a legal concept. For example, tracing the origin of
an in rem forfeiture proceeding by the government against the
property involved in or acquired by crime, the Supreme Court
cited Exodus 21:28: “[i]f an ox gore a man or a woman, and they
die, he shall be stoned and his flesh shall not be eaten.”141 After
locating the original source of this legal concept in the Bible, the
Court traced the development of the forfeiture further to the common
law concept of “deodand,” citing to Blackstone’s Commentaries
on the Laws of England and Holmes’s The Common Law.142 While it is
a fact that Blackstone cited Exodus in his Commentaries,143 Holmes
and other authors did not go that far.144 Other federal and state
courts have also used the biblical passage Exodus 21:28 to explain
not only the origin of the law of forfeiture, but also other tort actions,
despite the availability of other sources of legal history upon
which American law is actually founded.145
140 Idleman, Concealment, supra note 2, at 517-18.
141 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 681 n.17 (1974). See
also United States v. Bajakajian, 524 U.S. 321, 330 n.5 (1998).
142 Calero-Toledo, 416 U.S. at 681 (citing to “O. Holmes, the Common Law, c. 1
(1881)” and “1. W. Blackstone, Commentaries *300”). See also Bajakajian, 524 U.S. at
330 (citing to “1 W. Blackstone, Commentaries on the Laws of England 290-292
(1765); O. Holmes, The Common Law 10-13, 23-27 (M. Howe ed. 1963)”).
143 WILLIAM BLACKSTONE, 1 COMMENTARIES *291.
144 See OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1-38 (45th printing 1923,
1909, 1881); FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH
LAW, 473-74 (2d ed. 1923).
145 Federal courts citing or quoting Exodus 21:28: United States v. All Funds in Account
Nos. 747.034/278, 295 F.3d 23, 25 (D.C. Cir. 2002); United States v. Gilbert,
244 F.3d 888, 918 (11th Cir. 2001); United States v. One Parcel Prop., 74 F.3d 1165,
1168 (11th Cir. 1996); United States v. 785 St. Nicholas Ave., 983 F.2d 396, 401 (2d
56 NEW YORK CITY LAW REVIEW [Vol. 9:31
The controversial Justice Moore of Alabama provides another
example of biblical invocation in support of a historical analysis of
a particular concept. Dissenting in Yates v. El Bethel Primitive Baptist
Church, he engaged in a historical discussion of the concept of separation
between the church and state, quoting from numerous biblical
passages.146 Other judges also turn to the Bible in order to
solidify the idea that a particular law is rooted in history. In a case
involving a defamation suit, the West Virginia Supreme Court used
Exodus 20:16, Deuteronomy 19:16-21, and Ecclesiastes 7:1 as historical
evidence that slander was prohibited since the beginning of
time.147 After quoting the Bible as its first source, the court proceeded
by listing numerous legal sources on defamation, libel, and
slander. The historical concept of subjecting “illegitimate” children
to legal discrimination is also explained using Deuteronomy
23:2: “Throughout history, illegitimate children were precluded
from, among other legal rights, entering certain professions. The
Book of Deuteronomy states: a bastard shall not enter into the congregation
of the Lord; even to this tenth generation shall he not
enter into the congregation of the Lord. Deut. 23:2.”148
Supreme Court justices join lower court judges in quoting the
Bible when they resort to providing a historical review of certain
Cir. 1993); United States v. Seifuddin, 820 F.2d 1074, 1076 (9th Cir. 1987); United
States v. Sandini, 816 F.2d 869, 872 (3d Cir. 1987); United States v. $39,000 in Canadian
Currency, 801 F.2d 1210, 1218 n.4 (10th Cir. 1986); United States v. One 1976
Mercedes Benz 280S, 618 F.2d 453, 454 (7th Cir. 1980); United States v. Funds from
Prudential Sec., 362 F. Supp. 2d 75, 79 (D.C. Cir. 2005); United States. v. Croce, 334
F. Supp. 2d 781, 786 n.13 (E.D. Pa. 2004); United States v. Funds From Prudential
Sec., 300 F. Supp. 2d 99, 100 n.1 (D.C. Cir. 2004); United States v. 38 Whalers Cove
Drive, 747 F. Supp. 173, 177 (E.D.N.Y. 1990); United States v. Haro, 685 F. Supp.
1468, 1473 (E.D. Wis. 1988). State courts citing or quoting Exodus 21:28: Allen v.
State, 605 A.2d 994, 998 n.3 (Md. Ct. Spec. App. 1992); Prop. Clerk of N.Y. City Police
Dep’t v. Molomo, 583 N.Y.S.2d 251, 253 (App. Div. 1992); Duren v. Kunkel, 814
S.W.2d 935, 937 n.3 (Mo. 1991); Commonwealth v. One 1988 Ford Coupe, 574 A.2d
631, 636 (Pa. Super. Ct. 1990); Holtzman v. Samuel, 495 N.Y.S.2d 583, 585 n.1 (Sup.
Ct. 1985); Dist. Attorney of Queens County v. McAuliffe, 493 N.Y.S.2d 406, 411 (Sup.
Ct. 1985); Dir. of Fin. v. Cole, 465 A.2d 450, 456 n.2 (Md. 1983); New Jersey v. One
1977 Dodge Van, 397 A.2d 733, 734 n.1 (Middlesex County Ct. 1979); Prince
George’s County. v. Blue Bird Cab Co., 284 A.2d 203, 205 (Md. 1971); Magrine v.
Spector, 241 A.2d 637, 639 n.2 (N.J. Super. Ct. App. Div. 1968); Robidoux v. Busch,
400 S.W.2d 631, 639 (Mo. Ct. App. 1966); Johnson v. Olson, 67 P.2d 422, 425 (Kan.
1937).
146 847 So. 2d 331, 350-53 (Ala. 2002) (quoting the following chapters from King
James: 2 Chronicles 26:16-21, 2 Chronicles 26:18, 1 Samuel 13:13-14, Ezra 7:21-24, Matthew
22:21, Matthew 18:15-20, Matthew 16:19, 1 Corinthians 6).
147 Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 76 (W. Va. 1984).
148 Miscovich v. Miscovich, 688 A.2d 726, 728 n.2 (Pa. Super. Ct. 1997). See also
Kohler v. Bleem, 654 A.2d 569, 572 n.1 (Pa. Super. Ct. 1995).
2005] QUOTING THE BIBLE 57
legal principles. While such biblical references are usually placed
in footnotes, occasionally they are prominently displayed in the
main body of the opinion. For example, in Payne v. Tennessee, holding
that the Eighth Amendment does not prohibit the admission of
victim impact evidence in jury sentencing,149 Chief Justice Rehnquist
quoted Exodus 21:22-23, proscribing “[a]n eye for an eye, a
tooth for a tooth” to demonstrate how the guiding principles in
criminal sentencing varied over time.150 In his review of the historical
principles guiding criminal sentencing, Justice Rehnquist
started with the Bible before he moved on to the English law and
legislative enactments.151
Sometimes, a court quotes the Bible as support for a proposition
using a “cf.” as a citation signal. “Cf.” is an abbreviation for the
Latin word “confer,” which means “compare.”152 Black’s Law Dictionary
states, “As a citation signal, cf. directs the reader’s attention
to another authority or section of the work in which contrasting,
analogous, or explanatory statements may be found.”153 Such support
was used in the United States v. Ryan case by a dissenting judge
to interpret the statutory meaning of “the building used . . . in . . .
any activity affecting interstate . . . commerce.”154 The dissenting
judge argued that the statutory requirement of “activity” was missing
in respect to the building in question.155 The dissent cited the
Bible, stating, “The building here was just cumbering the ground.
Cf. Luke 13:7 (King James). It was not being ‘used’ in any ‘activity.’”
156 The biblical passage cited states: “So he said to the man
who took care of the vineyard, ‘For three years now I’ve been coming
to look for fruit on this fig tree and haven’t found any. Cut it
down! Why should it use up the soil?’”157 The judge used this citation
assuming the reader’s familiarity with a biblical passage of this
length and on this particular topic, which was listed under the
chapter “Repent or Perish” in Luke. This assumption seems to be a
long stretch if the extralegal authority was used as an analogy to
show that there was no use for the building in question.
Another example of the use of a biblical citation with a cf. citation
signal is in the Conklin v. Anne Arundel County Bd. of Educ.
149 501 U.S. 808, 827 (1991).
150 Id. at 819.
151 Id.
152 BLACK’S LAW DICTIONARY 243 (8th ed. 2004).
153 Id.
154 41 F.3d 361, 369 (8th Cir. 1994) (Arnold, C.J., dissenting).
155 Id.
156 Id.
157 Luke 13:7 (New International).
58 NEW YORK CITY LAW REVIEW [Vol. 9:31
case.158 Parents of a dyslexic child challenged the county’s program
as not being in compliance with the Education of the Handicapped
Act.159 In a footnote, discussing the fact that the board
took advantage of the child’s temporary progress (which was actually
due to private tutoring) to show its compliance with the statute,
the court quoted this passage from the Bible when it said: “Annual
grade promotion may, as a result, be a reasonable barometer for
measuring the progress that this handicapped child can achieve in
the coming years. . . . Cf. Matthew 26:52 (King James) (‘[A]ll they
that take the sword shall perish with the sword.’).”160 The court
took the board’s argument and created a standard to which the
board should adhere in the future, consisting of annual grade promotion
and additional tutoring provided by the board.161 The
court assumed that the reader was familiar with the biblical passage
it partially quoted. The passage is part of the chapter on Jesus’s
arrest and its idea only becomes clear if one knows its entire
context:
Then the men stepped forward, seized Jesus and arrested him.
With that, one of Jesus’ companions reached for his sword, drew
it out and struck the servant of the high priest, cutting off his
ear. “Put your sword back in its place,” Jesus said to him, “for all
who draw the sword will die by the sword.”162
The fact that judges resort to citing the Bible in support of their
arguments shows the privilege that Christianity enjoys in our society.
The invisibility of that privilege is enhanced by the judges’ assumptions
of their audience’s familiarity with the Bible and by
their disregard of the need for a full explanation of a cited source
and its relation to the proposition at hand.
Courts also use the Bible to explain the origins of a word. For
example, in Bok v. McCaughn, the court explained that “[c]harity,
derived from the Latin caritas, originally meant love. In the thirteenth
chapter of first Corinthians the revised version uses the word
‘love’ in defining the third of the three cardinal virtues, which, in
King James’ version read ‘Faith, Hope and Charity.’”163 The term
“sodomy” also finds its origin in the Bible, as the court noted in
Stone v. Wainwright, citing Genesis 13:13 and 18:20 and quoting Leviticus
18:22: “Thou shalt not lie with mankind, as with womankind:
158 946 F.2d 306 (4th Cir. 1991).
159 Id. at 309.
160 Id. at 315 n.6.
161 Id.
162 Matthew 26:50-52 (New International).
163 42 F.2d 616, 618-19 (3d Cir. 1930).
2005] QUOTING THE BIBLE 59
it is abomination.”164
Similarly, Justice Breyer quoted the Bible to explain the origin
of the word “carries” in a drug trafficking case where the statute
included the phrase “carries a firearm.”165 Arguing that the word
includes “conveyance in a vehicle,” he said, “[t]he greatest of writers
have used the word with this meaning. See, e.g., The King
James Bible, 2 Kings 9:28 (‘[H]is servants carried him in a chariot
to Jerusalem’); id., Isaiah 30:6 (‘[T]hey will carry their riches upon
the shoulders of young asses’).”166
The Bible has also been called upon to determine the meaning
of seemingly simple words such as “daytime.” In a criminal
prosecution, a defendant moved to quash a search warrant because
it was not served during daytime as required by law.167 He claimed
that the warrant was served at 7:15 p.m. and that the sun set at 6:53
p.m. on that day.168 Before citing Shakespeare, Webster’s Dictionary,
and finally federal and state courts, the court resorted to the Bible
as its first source of interpretation: “In the Bible, Genesis 1:5, we
find ‘And God called the light day and the darkness he called
night.’”169 The court dismissed the motion to quash the warrant,
concluding that it had no merit because of the general rule that
daytime is determined by the presence of light.170
While today’s courts are comfortable using biblical passage as
a rule, the courts in the past refrained from actually quoting the
Bible. For example, in a famous 1872 case, the Supreme Court
held constitutional Illinois’s refusal to admit a woman to practice
law, stating, “[t]he paramount destiny and mission of woman are to
fulfill the noble and benign offices of wife and mother. This is the
law of the Creator.”171 The Court did not specify what exact legal
source it was referring to when it invoked “the law of the Creator.”
172 Modern courts, however, are more explicit in the invoca-
164 478 F.2d 390, 393 n. 14 (5th Cir. 1973). The text of the cited passages state,
“Now the men of Sodom were wicked and were sinning greatly against the LORD,”
Genesis 13:13 (New International), and “Then the LORD said, ‘The outcry against
Sodom and Gomorrah is so great and their sin so grievous,’” Genesis 18:20 (New
International).
165 Muscarello v. United States, 524 U.S. 125, 128-29 (1998).
166 Id.
167 United States v. Liebrich, 55 F.2d 341, 342 (M.D. Pa. 1932).
168 Id.
169 Id.
170 Id. at 343 (stating “it is reasonable to hold that it is daytime for at least thirty
minutes after the time when the sun sets, and it is nighttime from then until thirty
minutes before the time when the sun rises”).
171 Bradwell v. State, 83 U.S. 130, 141 (1872).
172 Id.
60 NEW YORK CITY LAW REVIEW [Vol. 9:31
tion of biblical passages when formulating rules upon which they
decide cases. The Second Circuit, in a suit for a securities violation,
discussed the doctrine of “offensive collateral estoppel (more
recently called offensive issue preclusion),” pointing to judicial efficiency
as a primary “virtue” of the doctrine.173 It then indicated its
disadvantage:
Its virtues do not come without a price, however. Just as occasionally
‘the race is not to the swift, nor the battle to the strong
. . . but time and chance happeneth to them all,’ Ecclesiastes 9:11
(King James ed.), so too the results of an earlier resolution of an
issue may simply be wrong.174
Some courts, when formulating standards, go directly to the Bible
for support. In a dual adultery divorce suit, the husband filed a
counterclaim alleging that the wife’s lesbian relationship constituted
adultery.175 The court started its inquiry this way:
To better understand the underlying issue it is helpful to briefly
review both the legal and social standards and to distinguish between
adultery as a crime as opposed to a private civil wrong.
The [S]eventh [C]ommandment states that “Thou shall not
commit adultery” Exodus 20:14. A biblical definition of “Adultery”
is “the lying with a woman married to a husband.” See Deuteronomy
22:22 and Leviticus, 20:10. . . . If a married man be
“lying with a woman not betrothed” the biblical crime was fornication
and punishment by a fine of 50 shekels of silver. Deuteronomy
22:29 (The commentators generally opine that even the
thought of adultery was an offense under the biblical code, an
issue which we need not deal with today.)176
After the court quoted the above biblical passages, it proceeded
with common law and New Jersey statutory treatment of adultery.
Despite announcing that it would review “legal and social standards,”
the court started with religious moral authorities on the
issue, assuming that religious morality is a synonym for a social
standard. These are just some of the various ways in which courts
use biblical references in written opinions. The next part of this
Article will demonstrate the many different forms in which a particular
biblical passage enters judicial opinions.
173 Sec. Exch. Comm’n v. Monarch Funding Corp., 192 F.3d 295, 303 (2d Cir.
1999).
174 Id. at 303-04. See also Liberty Mut. Ins. Co. v. Fag Bearings Corp., 335 F.3d 752,
763 (8th Cir. 2003) (quoting the same biblical passage from Monarch Funding, 192
F.3d at 303-04).
175 S.B. v. S.J.B., 609 A.2d 124, 124 (N.J. Super. Ct. Ch. 1992).
176 Id. at 125.
2005] QUOTING THE BIBLE 61
IV. REFERENCING “NO MAN CAN SERVE TWO MASTERS”177
While the Supreme Court has never cited either Matthew or
Luke, federal and state courts prominently do so when using the
phrase “no man can serve two masters” to express the rule against
an attorney’s dual representation.178 In Hartford Accident & Indemnity
Co. v. Foster, a state court invoked the following sources of authority:
“The [b]iblical mandate that ‘No man can serve two
masters’ has its modern-day application in cases of this nature. See
Canon 6, Canons of Professional Ethics, 31 F.S.A.”179 Canon 6 of
Professional Ethics, entitled Adverse Influences and Conflicting Interests,
imposes a duty on a lawyer to disclose to a client any potential
interest that might adversely affect the client.180 Contrary to
biblical mandate, Canon 6 does not prohibit a lawyer from representing
two clients, but instead permits such representation by express
consent of all parties after full disclosure of the facts.181 The
invocation of a biblical mandate in this case is unclear because the
court held that the insured who was represented by the insurer’s
attorney was not harmed by any breach of fiduciary duty in failing
to provide information about settlement offers.182 Thus it follows
that not only can a man serve two masters, but even when such
servitude constitutes a breach of fiduciary duty, the attorney will
only be liable when the plaintiff who is suing suffered harm.
Some judges are willing to disregard existing legal standards,
instead quoting biblical teaching as a primary source of the authority
for their decision. In People v. Williams, a case charging a husband
and wife for sex offenses upon their minor adopted child, a
court held that there was no conflict of interest that would make
joint representation of the defendant and codefendant improper.
183 Dissenting in an extensive opinion, Justice Pincham
stated:
Civilization’s most sacred, learned, dedicated and staunchest advocate
of all times, centuries ago, admonished: “No one can
serve two masters; for either he will hate the one and love the
other, or he will hold to the one and despise the other.” The
advocate was the Christ Jesus; the admonition was to his disci-
177 See infra Appendix.
178 See infra Appendix.
179 528 So. 2d 255, 277 (Miss. 1988) (citing Spadaro v. Palmisano, 109 So. 2d 418
(Fla. App. 1959)).
180 CANONS OF PROF’L ETHICS Canon 6 (2004).
181 Id.
182 Foster, 528 So. 2d at 276.
183 538 N.E.2d 564, 566 (Ill. App. Ct. 1989).
62 NEW YORK CITY LAW REVIEW [Vol. 9:31
ples and the multitude during His Sermon on the Mount; the
admonition is cited in the most dynamic, accurate and prestigious
of all law books, The Holy Bible, at Matthews the 6th Chapter
and the 24th Verse.184
After citing the highest authority to support his argument, the dissenting
judge then proceeded to cite Canon 5 (5-1, 5-14, 5-15, 5-
17) of The Model Code of Professional Responsibility of the American
Bar Association.185
A significant number of cases state that the biblical mandate
“no person can serve two masters” is consistent with the Restatement
of the Law on Agency and reflects the current legal framework
within which courts operate. Contrary to what many judges
state in their opinions, however, the Restatement of the Law of
Agency does not prohibit dual servitude. The rules regulating the
relation of agency explicitly provide that “[a] person may be the
servant of two masters, not joint employers, at one time as to one
act, if the service to one does not involve abandonment of the service
to the other.”186 The comments for this section further elaborate
on this issue, allowing for a servant to be employed by joint
masters.187 The most important issue in the servant’s relationship
with a master is the master’s consent to service188 and not, as the
courts suggest, whether there is one or multiple masters. The same
is true for the law governing lawyers. The Restatement of the Law
Governing Lawyers clearly establishes that a lawyer may not represent
a client if the representation involves a conflict of interest189
unless the client consents to such representation.190
Consent, and not the number of clients or masters, is the key element
in a lawyer’s representation of a single or multiple clients in
civil and criminal litigation.191 Similarly, the ABA Model of Professional
Conduct Rule 1.13 allows an attorney to represent an organization
and “its directors, officers, employees, members,
shareholders or other constituents, subject to the provisions of
Rule 1.7.”192 It is also worth noting that the Federal Rules of Civil
Procedure include one of the most important rules allowing for
184 Id. at 569 (Pincham, J., dissenting).
185 Id. at 569-570.
186 RESTATEMENT (SECOND) OF AGENCY § 226 (1958).
187 Id. § 226(b).
188 Id. § 221.
189 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 121 (2001).
190 Id. § 122.
191 See id. §§ 128, 129.
192 MODEL RULES OF PROF’L CONDUCT R. 1.13(g) (2004).
2005] QUOTING THE BIBLE 63
multiple representation: Rule 23 governing class action.193
The Restatement of the Law of Agency and the Law Governing
Lawyers, together with the ABA Rules of Conduct, represent legal
authorities upon which judges should rely. Any extralegal authorities,
especially those that conflict with legal standards established
by the accepted authoritative legal sources of statutory or common
law, are constitutionally suspect and their invocation in judicial
opinions is unsound.
V. USING OTHER RELIGIOUS REFERENCES
While citations to the King James version of the Bible are numerous,
courts rarely use other religious authorities. A search for
the word “Talmud,” a collection of Jewish civil and canonical
laws,194 returns only three results in the Supreme Court cases
database in Westlaw: County of Allegheny v. ACLU,195 School District of
Abington Township, Pennsylvania. v. Schempp,196 and Permoli v. Municipality
No. 1 of New Orleans.197 The word “Torah,” the first five
books of the Old Testament, appears only five times in Supreme
Court opinions: Board of Education of Kiryas Joel Village School District
v. Grumet,198 Lee v. Weisman,199 County of Allegheny v. ACLU,200 Hernandez
v. Commissioner of Internal Revenue,201 and Miranda v. Arizona.
202 The word “Halakhah,” a Jewish law book consisting of the
193 FED. R. CIV. P. 23(g).
194 BLACK’S LAW DICTIONARY 1494 (8th ed. 2004).
195 492 U.S. at 583-84 (using the Talmud in describing certain Jewish practices).
196 374 U.S. 203, 273 (1963). “There was ample precedent, too, for Theodore
Roosevelt’s declaration that in the interest of ‘absolutely nonsectarian public schools’
it was ‘not our business to have the Protestant Bible or the Catholic Vulgate or the
Talmud read in those schools.’” Id. (citation omitted).
197 44 U.S. 589, 604-05 (1845). “In the case of The Commonwealth v. Abram Wolf, 3
Serg. & Rawle, 48, Chief Justice Tilghman affirmed the validity of an ordinance of
Philadelphia, imposing a fine for working on a Sunday, against a Jew; though under
the teachings of the Jewish Talmud and the Rabbinical Constitutions, the Jew deemed
Saturday as the Jewish Sabbath, and felt it both as a privilege and a duty to labour for
six days, and to rest on the seventh, or Saturday.” Id.
198 512 U.S. 687, 691 (1994) (part of the facts).
199 505 U.S. 577, 639 (1992) (Scalia, J., dissenting).
200 492 U.S. at 584 n.24. “A Torah scroll—which contains the five Books of
Moses—must be buried in a special manner when it is no longer usable. App. 237-
238.” Id.
201 490 U.S. 680, 701 (1989). “We also assume for purposes of argument that the
IRS also allows taxpayers to deduct ‘specified payments for attendance at High Holy
Day services, for tithes, for torah readings and for memorial plaques.’” Id. (quoting
Foley v. Comm’r of Internal Revenue, 844 F.2d 94, 96 (1988)).
202 384 U.S. 436, 458 n.27 (1966). “Thirteenth century commentators found an
analogue to the privilege grounded in the Bible. ‘To sum up the matter, the principle
that no man is to be declared guilty on his own admission is a divine decree.’
64 NEW YORK CITY LAW REVIEW [Vol. 9:31
Torah and the law instituted by the rabbi, appears in only one
opinion: Garrity v. New Jersey.203
The Supreme Court used the words “Koran,” “Kuran,”
“Qur’an,” or “Qor’an,” a Muslim book of revelations, in Zelman v.
Simmons-Harris,204 O’Lone v. Estate of Shabazz,205 Clay v. United
States,206 and Lemon v. Kurtzman.207 The Book of Mormon, a Mormon
scripture, is cited in two decisions: Zelman v. Simmons-Harris208
and Hernandez v. Commissioner of Internal Revenue.209
Statistical evidence demonstrates that the appearance of references
from Jewish or Muslim religious authorities is rare. Federal
and U.S. Supreme Court case law mentions “Talmud” in 63 cases,
“Torah” in 155 and “Halakhah” in 4 cases.210 The same search in
the state case law database produces “Talmud” in 151 cases, “Torah”
in 306 cases, and “Halakhah” in 2 cases, a pale comparison
with the words “King James,” which produce 599 cases in state case
law, and the word “Bible,” which is not possible to search due to an
extremely high number of cases in which it appears.211 The various
versions of the word “Koran” produce 499 cases in federal law and
349 cases in state law, but in most of those cases the word actually
appears as a personal name.212
One needs go no farther than statistical data to conclude that
the Bible is by far the most bellowed religious authority that judges
use in their decision-making process and their written opinions.
The apparent disparity in the use of different religious sources re-
Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin,
c. 18, ¶ 6, III Yale Judaica Series 52-53.” Id.
203 385 U.S. 493, 497 n.5 (1967) (comparing Jewish law with the Fifth
Amendment).
204 536 U.S. 639, 713 n.24 (2002) (quoting the New Testament, the Book of Mormon,
the Pentateuch, and the Koran).
205 482 U.S. 342, 345 (1987). “Jumu’ah is commanded by the Koran and must be
held every Friday after the sun reaches its zenith and before the Asr, or afternoon
prayer. See Koran 62:9-10; Brief for Imam Jamil Abdullah Al-Amin et al. as Amici
Curiae 18-31.” Id.
206 403 U.S. 698, 708 n.2, 709 (1971) (quoting the Koran 61:10-13 to define “jihad
as an injunction to the believers to war against non-believers”).
207 403 U.S. 602, 630-31 (1971) (Douglas, J., concurring). “The advantages of sectarian
education relate solely to religious or doctrinal matters. They give the church
the opportunity to indoctrinate its creed delicately and indirectly, or massively
through doctrinal courses. Many nations follow that course: Moslem nations teach
the Koran in their schools . . . .” Id.
208 Zelman, 536 U.S at 713 n.24.
209 490 U.S. at 709.
210 Westlaw search performed on February 10, 2006.
211 Westlaw search performed on February 10, 2006.
212 Westlaw search performed on February 10, 2006.
2005] QUOTING THE BIBLE 65
affirms the privileged status that Christianity enjoys in the United
States. It is a constant reminder of the composition of the judiciary
and the lack of diversity that contributes to the ongoing proliferation
of the use of biblical references by the courts.
CONCLUSION
Language analysts recognize that the Bible had a substantial
impact on standard English language.213 Many biblical passages,
having been read at home and in church for generations, entered
the popular linguistic milieu of the majority of Americans. However,
not all of them became independent lexical units:
A usage has to have achieved some degree of linguistic autonomy;
it must be capable of being meaningful outside of its original
biblical context, usable by English speakers who do not read
(or even know) the Bible as well as those who do. (The same
point applies to expressions derived from Shakespeare or any
other author.) . . . A usage that does not meet this criterion is
really only a quotation.214
One of the standard English expressions derived from the
King James version of St. Matthew’s Gospel is, “No man can serve
two masters.”215 However, courts continue to quote the Bible when
referring to this expression. The variety of ways in which courts use
biblical passages from Matthew and Luke is impressive.216 If the biblical
passage that “no man can serve two masters” is part of folk
wisdom, there would seem to be no need to quote the Bible. If, on
the other hand, it is important to cite the ultimate source of this
proverb, referencing the Bible seems logical. While this biblical
quotation and citation to Matthew or Luke by courts may be trivial,
the continuous use of the Bible by judges to support their arguments
in written opinions is unjustified and should be barred. The
Bible contains many passages as simple as the one above, but the
scope of their impact on decision-making is impermissibly broad,
including such decisions as life or death in capital cases. The arbitrariness
of judicial choice to use some biblical passages as traditional
folk expressions and to quote others as authoritative sources
213 CRYSTAL, supra note 71, at 274. See also Ashburn, supra note 2, at 343-47 (citing
examples of courts using aphorisms from Jewish law).
214 CRYSTAL, supra note 71, at 276. “The King James Bible . . . has contributed far
more to English in the way of idiomatic or quasi-proverbial expressions than any
other literary source. . . . Matthew’s Gospel alone, for example, yields over forty locutions
which, directly or indirectly, are part of Modern English.” Id.
215 Id. at 277.
216 See infra Appendix.
66 NEW YORK CITY LAW REVIEW [Vol. 9:31
is analogous to the arbitrariness in which some biblical passages
entered the everyday speech.217 Additionally, the use of the same
biblical passage as a folk expression by some courts and as a biblical
quote by the others creates a sense of arbitrariness and subjectivity,
bringing into question judicial impartiality.
The use of religious references in judicial decision-making is
not rare and cannot be underestimated. The numerous ways in
which the Bible finds its way into judicial opinions are a direct result
of judges’ willingness to disregard the rules of judicial conduct
and apparent constitutional violations stemming from such misuse.
Since there is no bright line between a common expression such as
“eye for eye, tooth for tooth”218 and the biblical mandate “[i]f anyone
takes the life of a human being, he must be put to death,”219
courts should never use either text, especially not during a sentencing
phase. Courts should be prohibited from using religious references
in judicial decision-making because any reliance on
extralegal sources of authority is contrary to the basic principles of
the American justice system. Using religious references in judicial
opinions is an impermissible exercise of a privilege that coerces the
minority to accept the norms of the majority. Whether disguised as
morals, proverbs, principles, tradition, or history, religious references
undermine judicial integrity and impartiality. Long ago, Justice
Holmes expressed one of the most creative ideas in respect to
delineating morality and law. Although his idea may sound radical
today to moderate and conservative proponents of the use of religion
in decision-making, it is one that should resonate with any person
who is genuinely concerned with the American justice system:
For my own part, I often doubt whether it would not be a gain if every
word of moral significance could be banished from the law altogether,
and other words adopted which should convey legal ideas uncolored by
anything outside the law.220
217 See CRYSTAL, supra note 71, at 278.
What is really intriguing, of course, is why some expressions entered
English in this way, and others did not. Why did such similes as wise as
serpents or harmless as doves ([Matthew] 10:16) not become everyday
phrases? As always, when we consider lexical innovation, the bigger
puzzle is to explain why so many apparently vivid or useful items did not
appeal.
Id. See also BARTH D. EHRMAN, MISQUOTING JESUS: THE STORY BEHIND WHO CHANGED
THE BIBLE AND WHY (2005) (discussing intentional and accidental alterations of the
Bible made by translators throughout history).
218 Leviticus 24:20 (New International).
219 Leviticus 24:17 (New International).
220 Holmes, The Path of the Law, supra note 128, at 464.
2005] QUOTING THE BIBLE 67
APPENDIX
CASES USING “NO MAN CAN SERVE TWO MASTERS”221
“No one can serve two masters. Either he will hate the one and love
the other, or he will be devoted to the one and despise the other.
You cannot serve both God and Money.” Matthew 6:24 (New
International).
“No servant can serve two masters. Either he will hate the one and
love the other, or he will be devoted to the one and despise the
other. You cannot serve both God and Money.” Luke 16:13 (New
International).
Terms Used by Courts to Refer to “No Man Can Serve Two
Masters”
Admonition Familiar scriptural quotation
Ancient admonition Fundamental law
Ancient axiom Fundamental rule
Ancient injunction Fundamental truth
Ancient maxim Fundamental proposition
Ancient principle General rule
Ancient truth General principle
Authority of Holy Writ Good Authority
Authoritative declaration Gospel
Axiom Hallowed petition
Biblical admonition High authority
Biblical advice Highest Authority has said
Biblical expression Infallible declaration
Biblical doctrine Biblical mandate Infallible truth Biblical quote Injunction
Biblical teaching Jesus said
Christ said Law for two thousand years
Christian morality Legal maxim
Centuries-old scriptural passage Maxim
Common experience Moral maxim
Declaration Moral rule
Divine declaration Old adage
Divine injunction Old as Holy Writ
Divine precept Old principle
Doctrine of the Holy Writ Old proverb
Divine saying Philosophy
Eternal truth Philosophy of the Galilean
Expression Phrase from the Bible
Fact Principle
221 Westlaw search performed on February 10, 2006 using a sesarch phrase “can
serve two masters.”
68 NEW YORK CITY LAW REVIEW [Vol. 9:31
Proposition of the Highest and best Scriptural references
authority Scriptural teaching
Proverb Statement
Public policy rule Theory
Quoted from the Bible Truth
Rule Truth of the biblical admonition
Rule of the moral law Truth of the Scriptural injunction
Rule of law Unanimous verdict of mankind
Saying Universal moral rule
Scriptural maxim Utterance of the divine Nazarene
Scriptural pronouncement Very high authority has said
Scriptural quotation Wisdom of the ages
SUPREME COURT CASES
NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 595 n.14
(1994) (Ginsburg, J., dissenting) (“No man can serve two masters.
If you are negotiating a contract, a lawyer does not represent both
clients. That is all that is involved here.”)
Sec. & Exch. Comm’n v. Capital Gains Research Bureau, Inc., 375
U.S. 180, 197 n.50 (1963) (Justice Goldberg quoting from United
States v. Miss. Valley Generating Co., 364 U.S. 520, 550 n.14
(1961))
United States v. Miss. Valley Generating Co., 364 U.S. 520, 550 n.14
(1961) (Warren, J.) (“The reason of the rule inhibiting a party who
occupies confidential and fiduciary relations toward another from
assuming antagonistic positions to his principal in matters involving
the subject matter of the trust is sometimes said to rest in a
sound public policy, but it also is justified in a recognition of the
authoritative declaration that no man can serve two masters; and
considering that human nature must be dealt with, the rule does
not stop with actual violations of such trust relations, but includes
within its purpose the removal of any temptation to violate them.”
(quoting Mich. Steel Box Co. v. United States, 49 Ct. Cl. 421, 439
(1914)))
Supreme Lodge Knights of Pythias v. Withers, 177 U.S. 260, 269
(1900) (Brown, J.) (“But if the insured is to be now bound as having
thus contracted, there must be mutuality in the contract. No
man can serve two masters.”)
2005] QUOTING THE BIBLE 69
CITING TO MATTHEW
Federal Court Cases
Freund v. Butterworth, 117 F.3d 1543, 1572 n.67 (11th Cir. 1997)
United States v. Mett, 65 F.3d 1531, 1538 (9th Cir. 1995)
Sanjour v. EPA, 56 F.3d 85, 100-01 (D.C. Cir. 1995)
Chapman v. Klemick, 3 F.3d 1508, 1512 (11th Cir. 1993)
Sanjour v. EPA, 984 F.2d 434, 447 (D.C. Cir. 1993)
United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1247 (9th
Cir. 1989)
United States v. Gambino, 864 F.2d 1064, 1074-1075 n.1 (3d Cir.
1988)
U.S. Fid. & Guar. Co. v. Louis A. Roser Co., 585 F.2d 932, 938 n.5
(8th Cir. 1978)
Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir.
1976)
Phelan v. Middle States Oil Corp., 220 F.2d 593, 619 (2d Cir. 1955)
Armstrong Cleaners, Inc. v. Erie Ins. Exch., 364 F.Supp. 2d 797,
815 (S.D. Ind. 2005)
Rocchigiani v. World Boxing Counsel, 82 F.Supp. 2d 182, 189
(S.D.N.Y. 2000)
Union Ins. Co. v. Knife Co., 902 F. Supp. 877, 881 (W.D. Ark. 1995)
ESM Gov’t. Sec., Inc. v. ESM Group, Inc. 66 B.R. 82, 84 (S.D. Fla.
1986)
United States v. Bergmann, 47 F. Supp. 765, 767 (S.D. Cal. 1942)
In re BH & P, Inc., 103 B.R. 556, 560 (Bankr. D.N.J. 1989)
In re Tampa Chain Co., 35 B.R. 568, 579 n.10 (Bankr. S.D.N.Y.
1983)
United States v. Short, 50 M.J. 370, 374 (C.A.A.F. 1999) (phrase
from the Bible)
70 NEW YORK CITY LAW REVIEW [Vol. 9:31
United States v. Nabisco, Inc., 117 F.R.D. 40, 44-45 (E.D.N.Y. 1987)
Kamean v. Local 363, 109 F.R.D. 391, 396 (S.D.N.Y. 1986)
United States v. Agosto, 528 F. Supp. 1300, 1310 (D. Minn. 1981)
United States v. Garafola, 428 F. Supp. 620, 621 (D.N.J. 1977) (Biblical
teaching)
Vance Trucking Co. v. Canal Ins. Co., 249 F. Supp. 33, 38 n.2
(D.S.C. 1966)
United States v. Kawakita, 96 F. Supp. 824, 836 (S.D. Cal. 1950)
State Court Cases
Office of Consumer Counsel v. Conn. Dep’t of Pub. Util. Control,
No. CV020513718S, 2002 WL 31319517, at *3 (Conn. Super. Ct.
Sept. 24, 2002)
Wis. Patients Comp. Fund v. Physicians Ins. Co. of Wis., 620 N.W.2d
457, 461-62 (Wis. Ct. App. 2000)
Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 998 P.2d 856, 877
(Wash. 2000)
State Farm Mut. Auto. Ins. Co. v. Traver, 980 S.W.2d 625, 634 (Tex.
1998)
In re Estate of Koch, 849 P.2d 977, 993 (Kan. Ct. App. 1993)
Geauga County Bar Ass’n. v. Psenicka, 577 N.E.2d 1074, 1074
(Ohio 1991)
Friends of La Vina v. County of L.A., 284 Cal. Rptr. 171, 178 n.1
(Ct. App. 1991) (Gates, Acting P.J., dissenting)
Ex parte Weaver, 570 So.2d 675, 682 (Ala. 1990)
J.K. & Susie L. Wadley Research Inst. & Blood Bank v. Morris, 776
S.W.2d 271, 284 (Tex. Ct. App. 1989)
People v. Williams, 538 N.E.2d 564, 569 (Ill. App. Ct. 1989)
(admonition)
Collins v. Citizens & S. Trust Co., 373 S.E.2d 612, 617 (Ga. 1988)
2005] QUOTING THE BIBLE 71
Swartz v. State, 429 N.W.2d 130, 132 (Iowa 1988)
SHV Coal, Inc. v. Cont’l Grain Co., 545 A.2d 917, 921 (Pa. Super.
Ct. 1988)
Brickner v. Normandy Osteopathic Hosp., Inc., 746 S.W.2d 108,
113 (Mo. Ct. App. 1988)
Jim Royer Realty, Inc. v. Moreira, 363 S.E.2d 10, 12 (Ga. Ct. App.
1988)
Pearl River Valley Water Supply Dist. v. Hinds County, 445 So.2d
1330, 1356 n.25 (Miss.1984)
In re Conduct of Samuels and Weiner, 674 P.2d 1166, 1171 (Or.
1983)
Webb v. State, 433 So.2d 496, 499 (Fla. 1983)
Ellis v. Flink, 374 So.2d 4, 5 n.4 (Fla. 1979)
Conn. Comm’n on Special Revenue v. Conn. Freedom of Info.
Comm’n, 387 A.2d 533, 537 (Conn. 1978)
Harford County v. Tatar, Lininger, Clark & Wood, Inc., 363 A.2d
501, 505 (Md. 1976)
In re Runals’ Estate, 328 N.Y.S.2d 966, 978 (Sur. Ct. 1972)
Onorato v. Wissahickon Park, Inc., 244 A.2d 22, 25 (Pa. 1968)
Spratlin, Harrington & Thomas, Inc. v. Hawn, 156 S.E.2d 402, 407
(Ga. Ct. App. 1967) (Biblical expression)
State v. 62.96247 Acres of Land, More or Less, in New Castle, 193
A.2d 799, 806 n.7 (Del. Super. Ct. 1963)
State v. Brewer, 129 S.E.2d 262, 277 (N.C. 1963)
Martin v. Hieken, 340 S.W.2d 161,165 (Mo. Ct. App. 1960)
Hughes v. Robbins, 164 N.E.2d 469, 473 (Ohio Ct. Com. Pl. 1959)
(“It has been well written that ‘no servant can serve two masters, for
either he will hate the one and love the other, or else he will hold
to the one and despise the other.’”)
72 NEW YORK CITY LAW REVIEW [Vol. 9:31
Powers v. Johnson, 306 S.W.2d 616, 624 (Mo. Ct. App. 1957)
Fruchtl v. Foley, 84 So.2d 906, 909 (Fla. 1956) (admonition)
Lexington Insulation Co. v. Davidson County, 90 S.E.2d 496, 498
(N.C. 1955)
City of Miami v. Benson, 63 So.2d 916, 920 (Fla. 1953)
Ridgway v. Super. Ct. of Yavapai, 245 P.2d 268, 271 (Ariz. 1952)
Safeway Stores v. Retail Clerks Int’l Ass’n, 234 P.2d 678, 682 (Cal.
Dist. Ct. App. 1951)
State ex rel. Young v. Niblack, 99 N.E.2d 839, 845 (Ind. 1951)
Bossler v. Wilson, 65 Pa. D. & C. 164, 171 (Phila. Mun. Ct. 1949)
City of Jackson v. McLeod, 24 So.2d 319, 325 (Miss. 1946) (“The
public interest requires the undivided loyalty of police officers to
the public service and we were told long ago by One whose judgment
was infallible that ‘no man can serve two masters; for either
he will hate the one and love the other, or else he will hold to the
one and despise the other.’”)
Barr v. Sun Life Assurance Co. of Can., 200 So. 240, 244 (Fla. 1941)
Century Indem. Co. v. Carnes, 138 S.W.2d 555, 560 (Tex. Civ. App.
1940)
Moffett Bros. P’ship Estate v. Moffett, 137 S.W.2d 507, 511 (Mo.
1939)
Caudle v. Sears, Roebuck & Co., 182 So. 461, 464 (Ala. 1938)
Whitlow v. Patterson, 112 S.W.2d 35, 41 (Ark. 1937) (“No man can
serve two masters; for either he will hate the one, and love the
other; or else he will hold to the one and despise the other.”)
Hood ex rel. N.C. Bank & Trust v. N.C. Bank & Trust, 184 S.E. 51,
62 (N.C. 1936)
Olson v. Gaddis Inv. Co., 39 P.2d 744, 747 (Utah 1935)
City of Leesburg v. Ware, 153 So. 87, 89 (Fla. 1934)
2005] QUOTING THE BIBLE 73
State ex rel. Union Elec. Light & Power Co. v. Pub. Serv. Comm’n,
62 S.W.2d 742, 746 (Mo. 1933)
Harris v. United Serv. Co., 32 S.W.2d 618, 619 (Ark. 1930) (general
principle)
Robson v. Hahn, 277 P. 507, 508 (Cal. Dist. Ct. App. 1929)
Schwartzman v. London & Lancashire Fire Ins. Co. of Liverpool,
Eng., 2 S.W.2d 593, 602 (Mo. 1927)
Castellanos v. Castro, 289 S.W. 104, 105 (Tex. Civ. App. 1926) (“It
was said by the Great Teacher that ‘no man can serve two masters
. . . .’”)
Rezos v. Zahm & Nagel Co., 246 P. 564, 565 (Cal. Dist. Ct. App.
1926)
Carolina Bagging Co. v. Byrd, 116 S.E. 90, 92 (N.C. 1923)
Hume v. Baggett & Baggett, 221 S.W. 1002, 1003 (Tex. Civ. App.
1920) (“This rule of law not only rests on an understanding of
human nature but on the utterance of the Divine Nazarene, when
he said: ‘No man can serve two masters; for either he will hate the
one and love the other; or else he will hold to the one, and despise
the other.’”)
Murray v. Lizotte, 77 A. 231, 238 (R.I. 1910) (“No matter how high
his motives or how honorable his intention, ‘no man can serve two
masters; for either he will hate the one, and love the other; or he
will hold to the one, and despise the other.’”)
Shamokin Mfg. Co. v. Ohio German Fire Ins. Co., 39 Pa. Super.
553, 556 (Super. Ct. 1908) (“It involves a question whether the
same person may be an agent in a private transaction for both parties,
without the consent of both, so as to entitle him to compensation
from both or either. We have the authority of Holy Writ for
saying that ‘no man can serve two masters; for either he will hate
the one and love the other, or else he will hold to the one and
despise the other.’ All human experience sanctions the undoubted
truth and purity of this philosophy, and it is received as a cardinal
principle in every system of enlightened jurisprudence.“)
U.S. Tel. Co. v. Middlepoint Home Tel. Co., 19 Ohio Dec. 202, 208
(Ct. Com. Pl. 1908) (“It is as true today as when first spoken in the
74 NEW YORK CITY LAW REVIEW [Vol. 9:31
parable, and has become a fundamental rule that ‘No servant can
serve two masters; for either he will hate the one and love the
other; or else he will hold to the one and despise the other.’”)
Gann v. Zettler, 60 S.E. 283, 283 (Ga. Ct. App. 1908) (Powell, J.)
(“It is recorded of Him ‘who spake as never man spoke’ that, ‘seeing
the multitudes, he went up into a mountain, and when he was
set his disciples came unto him; and he opened his mouth and
taught them; saying: “No man can serve two masters; for either he
will hate the one and love the other, or else he will hold to the one
and despise the other.”’ So, also, is our law. Whoso, having undertaken
the service of his master, counsels with another and agrees
also to serve him in those same things wherewith he has been
trusted, cannot claim the reward promised by his master unless he
makes it plain that he has not acted privily, but that his master was
consenting thereto.” (internal citations omitted))
City of Philadelphia v. Durham, No. 1, 1907 WL 3343, at *13 (Pa.
Ct. Com. Pl. Jan. 30, 1907) (“We have the authority of Holy Writ
for saying that ‘no man can serve two masters; for either he will
hate the one and love the other, or else he will hold to the one and
despise the other.’ All human experience sanctions the undoubted
truth and purity of this philosophy, and it is received as a cardinal
principle in every system of enlightened jurisprudence.”)
McDowell v. First Nat’l Bank of Sutton, 102 N.W. 615, 617 (Neb.
1905)
Nat’l Tube Co. v. Eastern Tube Co., 13 Ohio Cir. Dec. 468 (Cir. Ct.
1902)
Home Bldg. & Loan Ass’n v. Evans, 53 S.W. 1104, 1105 (Tenn. Ct.
Ch. App. 1899)
Moore v. Grow, 1 Pa. Super. 125, 127 (Super. Ct. 1896)
Northrup v. Phillips, 99 Ill. 449, 454 (1881)
Dickson v. People ex rel. Brown, 17 Ill. 191, 193 (1855)
CITING TO LUKE
State Court Cases
Nationwide Mut. Fire Ins. Co. v. Bourlon, 617 S.E.2d 40, 60 (N.C.
Ct. App. 2005)
2005] QUOTING THE BIBLE 75
Barefield v. DPIC Cos., 600 S.E.2d 256, 281 (W. Va. 2004)
Rose ex rel. Rose v. St. Paul Fire & Marine Ins. Co., 599 S.E.2d 673,
688 (W. Va. 2004)
People v. Graham, 794 N.E.2d 231, 236 (Ill. 2003)
Myer v. Preferred Credit, Inc., 117 Ohio Misc. 2d 8, 24 (Ct. Com.
Pl. 2001)
State v. Reddick, 534 S.E.2d 473, 477 (Ga. Ct. App. 2000)
Brooks v. Zebre, 792 P.2d 196, 200 (Wyo. 1990)
Watkins v. Floyd, 492 S.W.2d 865, 870 (Mo. Ct. App. 1973)
Wise v. S. Pac. Co., 77 Cal. Rptr. 156, 160 (Ct. App. 1969)
Pac. Indem. Co. v. Indus. Accident Comm’n, 81 P.2d 572, 575 (Cal.
Ct. App. 1938)
Smith v. Harvey-Given Co., 185 S.E. 793, 796 (Ga. 1936)
Jordan v. Austin Sec. Co., 51 P.2d 38, 58 (Kan. 1935)
State v. Gautier, 147 So. 240, 246 (Fla. 1933)
Never Fail Land Co. v. Cole, 149 S.E. 585, 588 (N.C. 1929)
Patterson v. De Haven, 263 P. 568, 572 (Cal. Dist. Ct. App. 1928)
Chippewa Power Co. v. R.R. Comm’n of Wis., 205 N.W. 900, 902
(Wis. 1925)
Reserve Loan Life Ins. Co. v. Phillips, 119 S.E. 315, 317 (Ga. 1923)
Pagel v. Creasy, 6 Ohio App. 199, 206 (Ct. App. 1916)
McCudden v. Brockmeyer, 26 Ohio Dec. 432, 436 (Ct. Com. Pl.
1915)
Carr v. Ubsdell, 71 S.W. 112, 113 (Mo. Ct. App. 1902)
Bell v. McConnell, 37 Ohio St. 396, 399 (1881)
76 NEW YORK CITY LAW REVIEW [Vol. 9:31
NO QUOTATION MARKS
Federal Court Cases
United States v. Freyer, 333 F.3d 110, 112 (2d Cir. 2003) (no lawyer
can serve two masters)
United States v. Levine, 794 F.2d 1203, 1205 (7th Cir. 1986)
Ottawa Tribe v. United States, 166 Ct. Cl. 373, 379 (Ct. Cl. 1964)
(gospel)
Speeter v. United States, 42 F.2d 937, 940 (8th Cir. 1930) (old
principle)
Parkerson v. Borst, 264 F. 761, 765 (5th Cir. 1920) (scriptural
maxim)
United States v. Krafft, 249 F. 919, 928 (3d Cir. 1918)
Curved Electrotype Plate Co. of N.Y. v. United States, 50 Ct. Cl.
258, 272 (Ct. Cl. 1915) (authoritative declaration)
Crites, Inc., v. Prudential Ins. Co. of Am., 134 F.2d 925, 927 (6th
Cir. 1943) (principle)
Rankin v. United States, 98 Ct. Cl. 357, 367 (Ct. Cl. 1943) (authoritative
declaration)
Mich. Steel Box Co. v. United States, 49 Ct. Cl. 421, 439 (Cl. Ct.
1914) (authoritative declaration)
Bramhall v. United States, 4 Ct. Cl. 51, 59 (Cl. Ct. 1868)
Klein v. Miller, No. Civ.A.SA-02-CA-687FB, 2004 WL 1118725, at
*10 (W.D. Tex. Mar. 30, 2004) (biblical advice)
Costa v. U.S. Dep’t of Veteran’s Affairs, 845 F. Supp. 64, 69 (D.R.I.
1994) (biblical advice)
Overfield v. Pennroad Corp., 42 F. Supp. 586, 608 (E.D. Pa. 1941)
In re Int’l Match Corp., 20 F. Supp. 420, 422 (S.D.N.Y. 1937) (truth
of the biblical admonition)
John Conlon Coal Co. v. Westchester Fire Ins. Co. of N.Y., 16 F.
Supp. 93, 95 (M.D. Pa. 1936) (principle)
2005] QUOTING THE BIBLE 77
Marshall v. Lovell, 11 F.2d 632, 639 (D. Minn. 1926)
Brookings State Bank v. Federal Reserve Bank of S.F., 281 F. 222,
228 (D. Or. 1922)
Brookings State Bank v. Federal Reserve Bank of S.F., 277 F. 430,
432 (D. Or. 1921)
Brown v. Pa. Canal Co, 229 F. 444, 452 (E.D. Pa. 1916)
In re Va. Hardwood Mfg. Co., 139 F. 209, 218 (W.D. Ark. 1905)
Farmers’ Loan & Trust Co. v. Winona & Sw. Ry. Co., 59 F. 957, 961
(C.C.D. Minn. 1893)
Putnam v. Commonwealth Ins. Co., 4 F. 753, 760 (C.C.N.D.N.Y.
1880)
In re Tinley Plaza Assocs., 142 B.R. 272, 279 (Bankr. N.D. Ill.1992)
In re Huddleston, 120 B.R. 399, 401 (Bankr. E.D. Tex.1990)
United States v. Hubbard, 43 C.M.R. 322, 325 (C.M.A. 1971) (truth
of the Scriptural injunction)
Midwest Farmers v. United States, 64 F. Supp. 91, 102 (D. Minn.
1945)
State Court Cases
People v. Hardin, 840 N.E.2d 1205, 1212 (Ill. 2005)
Coronado v. Schoenmann Produce Co., 99 S.W.3d 741, 753-55
(Tex. Ct. App. 2003)
State ex rel. S.G., 814 A.2d 612, 616 (N.J. 2003)
Barrett v. Union Twp. Comm., 553 A.2d 62, 65 (N.J. Super. Ct.
App. Div. 1989) (moral rule)
Siegman v. Bd. of Educ., 477 N.E. 2d 241, 243 (Ill. App. Ct. 1985)
Copple v. City of Lincoln, 274 N.W.2d 520, 526 (Neb. 1979)
Pa. Labor Relations Bd. v. E. Lancaster County Sch. Dist., 1973 WL
16227, at *3 (Pa. Ct. Com. Pl. May 18, 1973) (fundamental truth)
78 NEW YORK CITY LAW REVIEW [Vol. 9:31
City of Montgomery v. Brendle Fire Equip., Inc., 279 So.2d 480,
486 (Ala. 1973)
Procidano v. Mautner, 335 N.Y.S.2d 17, 24 (N.Y. Civ. Ct. 1972)
St. Paul at Chase Corp. v. Mfrs. Life Ins. Co., 278 A.2d 12, 25 (Md.
1971)
Bd. of Educ. v. Wilton, 273 A.2d 44, 50 (N.J. 1971)
Caddie v. Warden, Md. Correctional Inst., 238 A.2d 129, 129 (Md.
Ct. Spec. App. 1968) (theory)
Hasbrouck v. Rymkevitch, 268 N.Y.S.2d 604, 606 (App. Div. 1966)
Commonwealth ex rel. Whitling v. Russell, 176 A.2d 641, 643 (Pa.
1962)
Van Dyke v. White, 349 P.2d 430, 437 (Wash. 1960)
Md. Credit Finance Corp. v. Hagerty, 139 A.2d 230, 233 (Md. 1958)
Jedwabny v. Phila. Transp. Co., 135 A.2d 252, 255 (Pa. 1957) (scriptural
references)
Coble v. Econ. Forms Corp. 304 S.W.2d 47, 51 (Mo. Ct. App. 1957)
Aldom v. Borough of Roseland, 127 A.2d 190, 194 (N.J. Super. Ct.
App. Div. 1956) (moral rule)
Jersey City v. Hague, 115 A.2d 8, 13 (N.J. 1955)
Henshie v. McPherson & Citizens State Bank, 280 P.2d 937, 947
(Kan. 1955)
In re Ridgely, 106 A.2d 527, 530 (Del. 1954) (injunction)
Cornale v. Stewart Stamping Corp., 129 N.Y.S.2d 808, 814 (Sup. Ct.
1954)
Shernoff v. Schimel, 112 N.Y.S.2d 333, 347 (Sup. Ct. 1952)
Klein v. Twentieth Century-Fox Int’l Corp., 108 N.Y.S.2d 767, 768
(Sup. Ct. 1951) (fact)
State ex inf. Taylor v. Cumpton, 240 S.W.2d 877, 884-85 (Mo. 1951)
2005] QUOTING THE BIBLE 79
Petition of Topham, 58 Pa. D. & C. 649, 654 (Ct. Com. Pl. 1947)
Nagel v. Todd, 45 A.2d 326, 328 (Md. 1946)
City of Lincoln v. First Nat’l Bank of Lincoln, 19 N.W.2d 156, 159
(Neb. 1945) (moral rule)
Alabama State Fed’n of Labor v. McAdory, 18 So.2d 810, 829 (Ala.
1944)
Phillips v. Phillips, 13 So.2d 922, 923 (Fla. 1943)
Almon v. Am. Carloading Corp., 38 N.E.2d 362, 363-64 (Ill. App.
Ct. 1941) (rule of law)
Cowan v. Hamilton Nat’l Bank, 146 S.W.2d 359, 362 (Tenn. 1941)
Jarrett v. French & Co., 3 N.Y.S.2d 227, 228 (App. Div. 1938)
(theory)
Valley & Siletz R.R. Co. v. Thomas, 48 P.2d 358, 383 (Or. 1935)
Beatty v. Employers’ Liab. Assurance Corp., 168 A. 919, 924 (Vt.
1933)
Greenfield v. Bausch, 263 N.Y.S. 19, 21 (App. Div. 1933) (fact)
Elco Shoe Mfrs. v. Sisk, 183 N.E. 191, 191-92 (N.Y. 1932)
Kane v. McClenachan, 159 A. 61, 64 (Pa. Super. Ct. 1932)
Pac. Fin. Corp. v. City of Lynwood, 300 P. 50, 53 (Cal. Dist. Ct. App.
1931) (principle)
New England Oil Ref. Co. v. Can. Mex. Oil Co., 174 N.E. 330, 337
(Mass. 1931)
Terrell v. Town of Tempe, 274 P. 786, 788 (Ariz. 1929)
Lucas Realty Co. v. Franks, 6 S.W.2d 273, 274 (Ky. 1928)
Eastham v. Stumbo, 279 S.W. 1109, 1110 (Ky. 1926)
C.M. Condon & Co. v. Richardson, 232 P. 1070, 1071 (Kan. 1925)
De Crette v. Mohler, 127 A. 639, 642 (Md. 1925)
80 NEW YORK CITY LAW REVIEW [Vol. 9:31
Smith v. Ward, 197 N.W. 684, 685 (S.D. 1924)
Williams v. Bolling, 121 S.E. 270, 273 (Va. 1923)
Grady v. Pink Hill Bank & Trust Co., 113 S.E. 667, 669 (N.C. 1922)
In re Moses, 195 N.Y.S. 358, 360 (App. Div. 1922) (old as Holy
Writ)
Meeks v. Fink, 89 So. 543, 544 (Fla. 1921)
Wilson v. S. Pac. Land Co., 46 Cal. App. 738, 745 (Ct. App. 1920)
Clarksburg Light & Heat Co. v. Pub. Serv. Comm’n, 100 S.E. 551,
555 (W. Va. 1919)
State v. Nichols, 166 N.W. 813, 813 (N.D. 1918)
Southampton Twp. v. Johnson, No. 3, 1916 WL 4261, at *1 (Pa. Ct.
Com. Pl. Jan. 17, 1916)
Schenectady Illuminating Co. v. Bd. of Supervisors, 151 N.Y.S. 830,
831 (Sup. Ct. 1914)
Hirsh v. Twyford, 139 P. 313, 316 (Okla. 1913)
Norbeck & Nicholson Co. v. State, 142 N.W. 847, 852 (S.D. 1913)
(fundamental proposition)
City of Minneapolis v. Canterbury, 142 N.W. 812, 814 (Minn. 1913)
Hill v. Whiteside, 85 A. 425, 425 (Pa. 1912)
Bell v. Riggs, 127 P. 427, 430 (Okla. 1912) (high authority)
Langford v. Issenhuth, 134 N.W. 889, 894 (S.D. 1912) (fundamental
law)
Salene v. Queen City Fire Ins. Co. of Sioux Falls, 116 P. 1114, 1115
(Or. 1911) (principle)
Cobe v. Coughlin Hardware Co., 112 P. 115, 117 (Kan. 1910)
Mitchell v. Schreiner, 1910 WL 4143, at *1 (Pa. Super. Ct. 1910)
(quoted from the Bible)
Lightcap v. Nicola, 34 Pa. Super. 189, 202 (Super. Ct. 1907)
2005] QUOTING THE BIBLE 81
Harper v. Fidler, 78 S.W. 1034, 1035 (Mo. Ct. App. 1904) (authoritative
declaration)
Hier v. Miller, 75 P. 77, 77 (Kan. 1904)
Edwards v. Home Ins. Co., 73 S.W. 881, 885 (Mo. Ct. App. 1902)
In re Reifschneider, 69 N.Y.S. 1069, 1074 (App. Div. 1901)
Murphy v. Indep. Order of Sons & Daughters of Jacob of Am., 27
So. 624, 625 (Miss. 1900)
McFarland v. Gordon, 41 A. 507, 508 (Vt. 1898)
Delaware, L. & W. R. Co. v. Hardy, 34 A. 986, 987 (N.J. 1896)
Shepard v. Hill, 34 P. 159, 160 (Wash. 1893)
State v. Hastings, 55 N.W. 774, 789 (Neb. 1893)
Huggins Cracker & Candy Co. v. People’s Ins. Co., 41 Mo. App.
530, 541 (1890) (authoritative declaration)
Whited v. Germania Fire Ins. Co., 76 N.Y. 415, 420 (1879)
Roll v. Riddle, 5 Ohio Dec. Reprint 232, 655 (Super. Ct. 1874)
Ex rel. Dawson, 39 Ala. 367, 404 (1864)
In re Miller, 30 Pa. 478, 494 (1858)
Laight St. Baptist Church v. Noe, 12 How. Pr. 497, 497 (N.Y. Sup.
Ct. 1855)
Buckles v. Lafferty’s Legatees, 41 Va. (2 Rob.) 292, 302 (1843)
Gayden v. Gayden, 1842 WL 2414, at *5 (S.C. Ct. App. Eq. 1842)
(eternal truth)
State v. Hunt, 20 S.C.L. (2 Hill) 1, 64 (Ct. App. 1834)
Gallatian v. Cunningham, 8 Cow. 361, 371 (N.Y. Sup. Ct. 1826)
Carter v. Harris, 25 Va. (4 Rand.) 199, 204 (1826) (principle)
McAllister v. Marshall, 6 Binn. 338, 350 (Pa. 1814)
82 NEW YORK CITY LAW REVIEW [Vol. 9:31
QUOTATION MARKS WITHOUT CITATION
Federal Court Cases
United States v. Bowens, 108 F. App’x 945, 971 (5th Cir. 2004)
Berwind Corp. v. Fyfe, No. 89-55880, 1990 WL 208794, at *3 (9th
Cir. 1990)
United States v. Evans, 572 F.2d 455, 480 (5th Cir. 1978)
Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 233
(2d Cir. 1977)
Bhd. of Locomotive Firemen and Enginemen v. Mitchell, 190 F.2d
308, 308 (5th Cir. 1951) (scriptural pronouncement)
Va. Ferry Corp. v. NLRB, 101 F.2d 103, 105 (4th Cir. 1939) (high
authority)
Turner v. Kirkwood, 49 F.2d 590, 594 (10th Cir. 1931) (infallible
truth and divine saying)
Crawford v. United States, 30 App. D.C. 1, 12 (D.C. Cir. 1907)
Olcott v. Rice, 69 F. 199, 202 (5th Cir. 1895) (truth)
McGlothlin v. Connors, 142 F.R.D. 626, 635 (W.D. Va. 1992) (biblical
admonition)
Schwartz v. O’Grady, No. 86 CIV. 4243, 1990 WL 156274, at *5
(S.D.N.Y. Oct. 12, 1990)
SEC v. Commonwealth Sec. Investors, Inc., No. 2161, 1970 WL 202,
at *7 (E.D. Ky. Oct. 21, 1970) (Biblical quote)
Mo. State Life Ins. Co. v. Keyes, 46 F. Supp. 181, 185 (W.D. Ky.
1933) (Jesus said)
United States v. Walter, 291 F. 662, 663 (S.D. Fla. 1921)
United States v. Del. & Hudson Co, 164 F. 215, 258 (C.C.E.D. Pa.
1908)
United States v. Booth, 148 F. 112, 116 (C.C.D. Or. 1906)
(principle)
2005] QUOTING THE BIBLE 83
Symmes v. Union Trust Co. of N.Y., 60 F. 830, 864 (C.C.D. Nev.
1894)
United States v. Sippel, 8 C.M.R. 698, 745 (C.M.R. 1953)
(principle)
In re Grand Jury Investigation, 436 F. Supp. 818, 821 (W.D. Pa.
1977) (ancient axiom)
Dobbins v. Local 212, 292 F. Supp. 413, 451 n. 19 (S.D. Ohio 1968)
In re W.T. Byrns, Inc., 260 F. Supp. 442, 445 (E.D. Va. 1966)
Shapiro v. Stahl, 195 F. Supp. 822, 825 (M.D. Pa. 1961) (infallible
declaration)
Livingston v. Shreveport-Texas League Baseball Corp., 128 F. Supp.
191, 199 (W.D. La. 1955) (axiom)
State Court Cases
People v. Woidtke, 729 N.E.2d 506, 513 (Ill. App. Ct. 2000)
Winmark Ltd. P’ship v. Miles & Stockbridge, 674 A.2d 73, 87 (Md.
Ct. Spec. App. 1996)
Friendship Heights Citizens Comm. v. Barlow, 329 A.2d 122, 125
(Md. Ct. Spec. App. 1974)
Am. Ins. Ass’n v. Ky. Bar Ass’n, 917 S.W.2d 568, 571 (Ky. 1996)
Md. Metals, Inc. v. Metzner, 382 A.2d 564, 568 (Md. 1978)
In re Brown, 559 P.2d 884, 889 (Or. 1977)
Drenning v. Kuebel, Inc., 327 So. 2d 571, 575 (La. Ct. App. 1976)
In re Boivin, 533 P.2d 171, 174 (Or. 1975)
Commonwealth v. Shank, 54 Pa. D. & C.2d 602, 605 (Ct. Com. Pl.
1971)
Elizabeth Fire Officers Ass’n v. City of Elizabeth, 274 A.2d 817, 819
(N.J. Super. Ct. App. Div. 1971)
Warminster Twp. Appeal, 56 Pa. D. & C.2d 99, 111 (Ct. Com. Pl.
1971)
84 NEW YORK CITY LAW REVIEW [Vol. 9:31
Claughton v. Bear Stearns & Co., 156 A.2d 314, 319-20 (Pa. 1959)
(infallible declaration and public policy rule)
McCall v. Johns, 294 S.W.2d 869, 871 (Tex. Ct. App. 1956)
State v. Haesemeyer, 78 N.W.2d 36, 40 (Iowa 1956) (ancient truth)
In re Bond & Mortg. Guar. Co., 103 N.E.2d 721, 725 (N.Y. 1952)
(centuries-old scriptural passage)
Ky. State Fair Bd. v. Fowler, 221 S.W.2d 435, 439 (Ky. Ct. App.
1949) (philosophy)
In re Buder, 217 S.W.2d 563, 574 (Mo. 1949)
Kurtz v. Steinhart, 60 Pa. D. & C. 345, 360 (Ct. Com. Pl. 1947) (old
adage)
In re Laegen’s Estate, 43 N.Y.S.2d 924, 926 (Sur. Ct. 1943)
Rotzin v. Miller, 277 N.W. 811, 817 (Neb. 1938) (hallowed
petition)
Int’l Serv. Union Co. v. People ex rel. Wettengel, 70 P.2d 431, 436
(Colo. 1937)
Haines v. Biddle, 188 A. 843, 844 (Pa. 1937) (infallible declaration
and public policy rule)
Richter Jewelry Co. v. Schweinert, 169 So. 750, 753 (Fla. 1936)
(general rule)
Whelan v. Bailey, 36 P.2d 709, 710 (Cal. Dist. Ct. App. 1934)
(saying)
Bland v. Smith, 33 P.2d 25, 27 (Cal. Dist. Ct. App. 1934) (rule)
Clawans v. Ordway Bldg. & Loan Ass’n., 164 A. 267, 283 (N.J. 1933)
(wisdom of the ages)
Mees v. Grewer, 245 N.W. 813, 815 (N.D. 1932)
Hall v. Williams, 50 S.W.2d 138, 140 (Mo. 1932) (ancient maxim)
Neb. State Bank of Norfolk v. Sch. Dist. of Pierce, 240 N.W. 570,
571 (Neb. 1932) (good authority)
2005] QUOTING THE BIBLE 85
Wick v. Youngstown Sheet & Tube Co., 1930 WL 2386, at *5 (Ohio
Ct. Com. Pl. Dec. 29, 1930)
Cent. Nat. Bank of Lincoln v. First Nat. Bank, 219 N.W. 894, 895
(Neb. 1928) (philosophy)
McDaniel v. Cont’l Cas. Co., 240 Ill. App. 535, 549 (App. Ct. 1926)
In re Water Rights in Silvies River, 237 P. 322, 358 (Or. 1925)
Shealy v. S. Ry. Co., 120 S.E. 561, 568, 575 (S.C. 1924)
Koons v. Richardson, 227 Ill. App. 477, 484 (App. Ct. 1923) (rule
of the moral law and expression)
Tex. Ref. Co. v. Alexander, 202 S.W. 131, 134 (Tex. Civ. App. 1918)
(very high authority has said)
Tusant v. Grand Lodge A.O.U.W., 163 N.W. 690, 693 (Iowa 1917)
(law)
Kirby-Sorge-Felske Co. v. Doty, 157 N.W. 273, 276 (Mich. 1916) (infallible
declaration)
Peterson v. Lewis, 154 P. 101, 106 (Or. 1915)
In re E. Cameron Twp. Auditors’ Report, 1915 WL 3321, at *7 (Pa.
Com. Pl. Aug. 11, 1915) (statement) (general principle)
In re Krauthoff, 177 S.W. 1112, 1125 (Mo. Ct. App. 1915) (Highest
Authority has said)
King v. Reed, 141 P. 41, 43 (Cal. Ct. App. 1913) (infallible declaration
and public policy rule)
Clopton v. Meeves, 133 P. 907, 910 (Idaho 1913) (common experience
and unanimous verdict of mankind)
Jacobs v. Beyer, 125 N.Y.S. 597, 599 (App. Div. 1910) (rule)
Biddle v. Cumberland County, No. 15, 1908 WL 2834, at *1 (Pa. Ct.
Com. Pl. Oct. 20, 1908)
Commonwealth ex rel. Kutz v. Witman, 66 A. 986, 987 (Pa. 1907)
(statement)
86 NEW YORK CITY LAW REVIEW [Vol. 9:31
Evans v. Rockett, 32 Pa. Super. 365, 369 (Super. Ct. 1907) (infallible
declaration)
Commonwealth v. Miller, 1906 WL 3769, at *4 (Pa. Super. Ct.
1906) (expression)
Wilkinson v. McCullough, 46 A. 357, 358 (Pa. 1900) (infallible
declaration)
Leathers v. Canfield, 75 N.W. 612, 616 (Mich. 1898) (infallible
declaration)
Addison v. Wanamaker, 39 A. 1111, 1111 (Pa. 1898) (proposition
of the highest and best authority)
Deutsch v. Baxter, 47 P. 405, 405 (Colo. App. 1896) (fact)
Wildberger v. Hartford Fire Ins. Co., 17 So. 282, 283 (Miss. 1895)
Finch v. Redding, 26 A. 368, 369-70 (Pa. 1893) (infallible declaration
and public policy rule)
Caswell v. Jones, 26 A. 529, 530 (Vt. 1893)
Harkness v. Briscoe, 47 Mo. App. 196, 198 (Ct. App. 1891)
(principle)
Pearson v. Concord R.R., 62 N.H. 537, 545 (1883)
Memphis, Kan. & Colo. Ry. Co. v. Parsons Town Co., 26 Kan. 503,
509 (1881)
Haxton v. Harris, 19 Kan. 511, 512 (1878)
Draper v. Moore, 1872 WL 6072, at *4 (Ohio Super. Ct. 1872)
BIBLICAL MANDATE
State Court Cases
Hartford Accident & Indem. Co. v. Foster, 528 So.2d 255, 277
(Miss. 1988) (ancient principle)
Kirby v. Cruce, 688 S.W.2d 161, 171 (Tex. Ct. App. 1985) (Christian
morality)
2005] QUOTING THE BIBLE 87
In re Hershberger, 606 P.2d 623, 627 (Or. 1980) (biblical
admonition)
Citizens Bank v. C & H Constr. & Paving Co., 600 P.2d 1212, 1217
(N.M. Ct. App. 1979) (centuries-old scriptural passage)
Twp. Comm. of Hazlet Twp., Monmouth County v. Morales, 289
A.2d 563, 565 (N.J. Super. Ct. Law Div. 1972) (moral rule)
State v. Goode, 171 N.W.2d 733, 733 (S.D. 1969) (ancient
admonition)
State ex rel. Londerholm v. Schroeder, 430 P.2d 304, 314 (Kan.
1967) (ancient injunction)
Riviera Congress Assocs. v. Yassky, 264 N.Y.S.2d 624, 634 (Sup. Ct.
1965) (centuries-old scriptural passage)
Schear v. City of Elizabeth, 196 A.2d 774, 778 (N.J. 1964) (universal
moral rule)
Naftalin v. John Wood Co., 116 N.W.2d 91, 99 (Minn.1962) (truth
of the biblical admonition)
Dick & Reuteman Co. v. Doherty Realty Co., 114 N.W.2d 475, 479
(Wis. 1962) (centuries-old scriptural passage)
Schauer v. City of Miami Beach, 112 So.2d 838, 841 (Fla. 1959)
(familiar scriptural quotation)
Spadaro v. Palmisano, 109 So.2d 418, 421 (Fla. Dist. Ct. App. 1959)
(biblical mandate)
Raymond v. Bartlett, 175 P.2d 288, 289 (Cal. Dist. Ct. App. 1946)
(biblical doctrine)
Higginbotham v. Pub. Belt R.R. Comm’n, 181 So. 65, 71 (La. Ct.
App. 1938) (biblical doctrine)
In re Flavin’s Guardianship, 18 N.E.2d 514, 518 (Ohio Ct. App.
1938) (law for two thousand years)
Adams v. Hearn, 178 A. 606, 611 (Md. 1935) (divine injunction)
Stubbs v. Fla. State Finance Co., 159 So. 527, 528 (Fla. 1935) (familiar
scriptural quotation)
88 NEW YORK CITY LAW REVIEW [Vol. 9:31
Mangels v. Safe Deposit & Trust Co. of Balt., 173 A. 191, 197 (Md.
1934) (divine precept)
State v. Williams, 68 S.E. 900, 902 (N.C. 1910) (scriptural teaching)
Hamilton v. Allen, 125 N.W. 610, 612 (Neb. 1910) (philosophy of
the Galilean and declaration)
Beasley v. Swinton, 24 S.E. 313, 322 (S.C. 1896) (Christ said)
Funk v. Washington Twp., No. 196, 1893 WL 2925, at *4 (Pa. Ct.
Com. Pl. July 15, 1893) (authority of Holy Writ)
Pa. R.R. Co. v. Flanigan, 4 A. 364, 367 (Pa. 1886) (authority of Holy
Writ)
Everhart v. Searle, 71 Pa. 256, 259 (1872) (authority of Holy Writ
and principle)
Scheible v. Bacho, 41 Ala. 423, 450 (1868) (Divine declaration)
Herman v. Martineau, 1 Wis. 151, 158 (1853) (doctrine of Holy
Writ)
PRINCIPLE OR PROPOSITION
State Court Cases
People v. Dobrino, 592 N.E.2d 391, 401 (Ill. App. Ct. 1992)
People v. Arnold, 577 N.E.2d 1355, 1362 (Ill. App. Ct. 1991)
Fed’n of State Cultural & Educ. Prof’l v. Commonwealth, 546 A.2d
147, 150 (Pa. Commw. Ct. 1988)
People v. Spreitzer, 525 N.E.2d 30, 34 (Ill. 1988)
State v. Basham, 170 N.W.2d 238, 255 (S.D. 1969) (principle)
Batson v. Strehlow, 59 Cal. Rptr. 195, 205 (Cal. Ct. App. 1967)
Holmes v. McKey, 383 P.2d 655, 664 (Okla. 1963)
In re Guardianship of Angell, 167 N.E.2d 711, 713 (Ill. App. Ct.
1960)
Battle v. Reserve Life Ins. Co., 168 N.E.2d 915, 918 (Ohio Ct. App.
1959)
2005] QUOTING THE BIBLE 89
Fred Tuke & Son v. Burkhardt, 156 N.E.2d 490, 491 (Ohio Mun.
Ct. 1958)
State v. Hambrick, 196 P.2d 661, 667 (Wyo. 1948)
Callahan v. Jones, 93 P.2d 326, 330 (Wash. 1939)
Gallin v. Nat’l City Bank of N.Y., 273 N.Y.S. 87, 101 (Sup. Ct. 1934)
Rossi v. Firemen’s Ins. Co. of Newark, N. J., 165 A. 16, 18 (Pa.
1932)
Garibaldi Bldg. & Loan Ass’n of Atlantic City v. Garibaldi, 162 A.
419, 423 (N.J. Ch. 1932)
Swearingen v. Moore, 280 P. 295, 299 (Okla. 1929)
Johnson ex rel. McCarter v. Nippert, 144 A. 404, 406 (Pa. 1928)
Adams v. Kennard, 253 P. 1048, 1049 (Or. 1927)
Quell v. Boyajian, 90 Pa. Super. 386, 389 (Super. Ct. 1926) (ancient
principle)
Murray v. Stuart, 247 P. 187, 188 (Colo. 1926) (ancient principle)
W.R. Pickering Lumber Co. v. Sherritt, 233 P. 179, 180 (Okla.
1924)
Rowe v. Freeman, 172 P. 508, 511 (Or. 1918)
Livermore Falls Trust & Banking Co. v. Riley, 78 A. 980, 981 (Me.
1911)
Wolford v. Upper Salford Twp. Sch. Dist., 46 Pa. Super. 1, 4
(Super. Ct. 1910)
Clark v. Hubbard, 44 Pa. Super. 37, 42 (Super. Ct. 1910) (public
policy rule)
Edwards v. Meyers, 76 A. 510, 511 (Pa. 1910)
Marshall v. Reed, 32 Pa. Super. 60, 61 (Super. Ct. 1906) (declaration
and general principle)
Maxwell v. West, No. 603, 1900 WL 4333, at *1 (Pa. Ct. Com. Pl.
Feb. 3, 1900)
90 NEW YORK CITY LAW REVIEW [Vol. 9:31
Cincinnati, H. & D. R.R. Co. v. Morris, 10 Ohio C.C. 502, 520 (Cir.
Ct. 1895)
Rice v. Davis, 20 A. 513, 514 (Pa. 1890) (infallible declaration and
public policy rule)
Bensley v. Moon, 7 Ill. App. 415, 421 (App. Ct. 1880)
Bassett v. Monte Christo Gold & Silver Min. Co., 15 Nev. 293, 299
(1880) (general principle)
Eur. & N. Am. Ry. Co. v. Poor, 59 Me. 277, 277 (1871)
Morrison v. Ogdensburgh & Lake Champlain R.R. Co., 52 Barb.
173, 173 (N.Y. Sup. Ct. 1868)
PROVERB OR MAXIM
State Court Cases
In re Estate of Shano, 869 P.2d 1203, 1210 (Ariz. Ct. App. 1993)
Plaquemines Parish Com’n Council v. Delta Dev. Co., 502 So.2d
1034, 1040 (La. 1987)
Alexander v. Super. Ct., 685 P.2d 1309, 1315 (Ariz. 1984)
Int’l Ass’n of Fire Fighters, Local 1052 v. Pub. Employment Relations,
630 P.2d 470, 474 (Wash. Ct. App. 1981)
In re Adkins’ Estate, 319 P.2d 512, 515 (Mont. 1957) (old proverb)
Shell Oil Co. v. Bd. of County Com’rs, 231 P.2d 220, 224 (Kan.
1951) (maxim)
Engle v. Dist. Ct., 85 P.2d 627, 629 (Utah 1938)
In re Union Real Estate Inv. Co. First Mortgage 6% Gold Bonds
Due July 1, 1941, 1 A.2d 662, 666 (Pa. 1938)
Howard v. Potts, 233 N.W. 909, 912 (S.D. 1930) (moral maxim)
Horan v. Varian, 265 P. 263, 267 (Cal. Dist. Ct. App. 1928)
Cameron v. White, 262 P. 664, 668 (Okla. 1927)
Salata v. Dylewski, 207 N.W. 895, 896 (Mich. 1926)
2005] QUOTING THE BIBLE 91
Farnsworth v. Hatch, 151 P. 537, 541 (Utah 1915)
In re Ramsey, 123 N.W. 726, 728 (S.D. 1909) (moral maxim)
Casey v. Donovan, 65 Mo. App. 521, 529 (Ct. App. 1896)
Burke v. Bours, 32 P. 980, 981 (Cal. 1893)
Piatt v. Longworth’s Devisees, 27 Ohio St. 159, 195 (1875) (legal
maxim)