Society of Separationists, Inc. v. Guy Herman, Judge of the Travis County Court at Law

Guild, tape Local 776 v. Interna Editors Technicians, Local

tional Sound (9th Cir.1986)(a court should interpretations a union’s of its disturb faith”),

own documents “absent bad cert.

denied, (1987). However, explained

L.Ed.2d 765

above, pilots have not met the “de

manding standard” to demonstrate ALPA’s faith. Thus we defer to inter

bad ALPA’s resolution,

pretation of the 1985 the 1982

Constitution, and their effect on combined policy in

the 1980 MEC manual. ALPA’s

terpretation governing of its documents is by following

not unreasonable and its own

interpretation ALPA did not its breach

DFR in bad faith.23 The district court cor

rectly granted summary judgment on this

issue. conclusion, pilots

In we find that presented

have not sufficient evidence to alleged

raise a triable issue on ALPA’s bad duty representa-

faith breach of its of fair Accordingly, judgment

tion. of the dis-

trict dismissing pilots’ suit is

AFFIRMED. SEPARATIONISTS, INC.,

SOCIETY OF al., Plaintiffs-Appellants,

et

Guy HERMAN, Judge of the Travis Law, al., Court at et

Defendants-Appellees.

No. 90-8660. Appeals,

United States

Fifth Circuit.

Aug. original opinion, accepted pilots’ our we said that claim and therefore "the inter- "[t]he pilots opportunity per- have the on remand to pretation policy.” of the union Id. As ex- policy requir- suade the district court that if the above, plained pilots because the have not made violated, ing approval predi- MEC this is a ALPA, against a bad faith case we must defer to recovery representation cate for on their unfair interpretation governing ALPA’s of its own doc- O’Neill, claim.” ever, 886 F.2d at 1448 n. 4. How- pilots' interpretation. uments rather than the pilots’ we had not considered the bad faith

such an affirmation religious, jailed her contempt. Released after bond, posting the woman sued under sec- tion alleging violation of the Free Clause, Exercise seeking and damages and injunctive and declaratory relief. We hold judge’s that the actions violated potential juror’s right to Free Exercise guaranteed by the First and Fourteenth grant Amendments. We a declaratory judgment requiring confronted with a similar refusal to either dismiss the potential juror penalty without or accom- juror’s modate such constitutionally pro- tected beliefs allowing the use of an alternative form of avowal that both satis- scruples fies the juror and the re- quirements judicial system. We also decisis, consider matters of stare claim and preclusion, standing, issue immunity. and

I. Background 15, 1987, On December Murray- Robin O’Hair, Atheist, appeared American for jury duty Courthouse, County at the Travis Austin, located in Texas. She refused to required take the oath of venire members questioning, before voir dire stating that Vinson, Austin, Tex., plain- John W. for she was an atheist and could not take an tiffs-appellants. oath which included a reference to God. McCormack, James M. County Asst. Herman, presiding judge, Guy The offered Oden, Atty., County Atty., Ken Travis Aus- affirm, Murray-O’Hair to allow but the tin, Tex., for defendants-appellees. affirmation still included a reference to God, Murray-O’Hair and refused. Mur- ray-O’Hair was told to be seated and the jurors other were sworn in. CLARK, Judge, Before Chief Murray-O’Hair proceed was told to GARWOOD, GOLDBERG and Circuit courtroom, regular Herman’s where the

Judges. judge again requested that she take the accompanied by oath. attorney, Now her GOLDBERG, Judge: Circuit Murray-O’Hair objections restated her atheist, An jury duty summoned for in a Herman offered to her allow to raise her court, Texas declined to take the hand and make an affirmation without pre-voir anything dire oath because it included a reference to “God or of that na- declined, reference to God. Offered an affirmation Murray-O’Hair stating ture.” containing God, a reference to she contin- that she could not affirm because an affir- ued to refuse. she just When was offered the mation “is as as an oath.” opportunity to raise her hand and be af- Herman warned her that if she refused to reference, affirmation, firmed such she still de- take an oath or make an he clined, explaining contempt. Murray- that she considered an would hold her civil just responded trying affirmation as an oath. she O’Hair judge disagreed jury duty, sought The with her her to avoid belief evade Second, August Murray- statement.”

“participating in plaintiffs O'Hair and other individual inquired as to what form judge never brought suit in federal district court truthfulness meet would of assurance against County District the Travis objections. Herman and Murray-O’Hair’s General, Attorney alleging and the Texas then debated the nature of Murray-O’Hair (1) “whereby they continuing pattern re- le- Herman had done some affirmations. spond requested jury for service in the research, part on cases that gal based Court, (2) Travis District refuse to him, had Murray-O’Hair submitted oath, take a ‘God’ are excluded that “affirmances are he concluded presiding Judge service.” do not wish to atheists and other folks that The court for failure to district dismissed view, In an affirmation take oaths.” affirmed, holding state a claim. We statement”; it “religious not a was was constitutionally protected right is no there give merely pledge that one would true adding “[mjore- jury to serve on a and questions dire and met answers to the voir over, jurors are not to swear ... jury for service. Mur- qualifications deity an an oath to ... affirmation [is view: “An affir- ray-O’Hair had a different deity.”3 the same as an oath to a not] mation, understanding, religious my is a opinion Neither out the factual con- fleshes responded, Herman “The statement.” claims; plaintiffs’ text of the the district agree you on that Court does not simply court notes that manner of “[t]he matter.” excluding jury the Plaintiffs from service and, Murray-O’Hair continued to refuse incident,” adding varies from incident to discussion, ending patient the heretofore explanation that “the differences spot jailed Herman ordered her for opinion men- not material.”4 Neither until days term of three “and thereafter Judge anyone tions Herman or refers to you purge yourself contempt by being jailed for their refusal to or swear taking jailed, was the affirmation.” She affirm. approximately but was released on bond Third, 16, 1989, Murray- on November not, six hours later. She did or was not Society Separationists O’Hair and to, permitted place jury resume her in the seeking filed dam- this section 1983 action pool. ages declaratory injunctive relief Murray-O’Hair subsequently filed three Herman, against County Judge Travis Bill separate challenging suits Herman’s law Aleshire, County, Travis the “Travis Coun- actions and similar actions other Travis clerk, ty system,” court and the sheriff and First, County judges. Murray-O’Hair peti- suit, County. court bailiffs of Travis County district court for tioned the Travis predicated particular exchange on the be- corpus. a writ of habeas The court denied Murray-O’Hair, tween Herman and relief, subsequently styled as a class action on behalf of all contempt sentence to the six commuted the pre- individuals whose convictions Murray-O’Hair appealed hours served. taking juror cluded them oath.5 relief, Murray-O’Hair’s the denial of but the state court of Plaintiffs claimed that appeals appeal rights as moot.1 First and Fourteenth Amendment dismissed Court, O'Hair, (Tex.Ct. Murray County 1. See In re No. 3-88-044-CV v. Travis Dist. No. A-89- 6, 1988) (unpublished App. April opin (W.D.Tex. 1989) (unpublished CA-1463 Mar. — Austin ion). opinion). Court, Murray County v. Travis Dist. No. A-89- fancifully 5. The class is denominated as “all (W.D.Tex. 1989) (unpublished CA-1463 opinion). Mar. eligible jury individuals for service who have deep-seated against mouthing any convictions Court, Murray v. Travis Dist. service, religious dogma as a condition (5th Cir.) (unpublished opinion), de cert. judge-dictated religious much less statements — U.S. —, nied, constituting exercise." (1990). however, impris- because she was Murray preclusive had been violated is without ef- fect. refusing for to take a oath. oned

The district decided the case on matter, As an initial we set out summary judgment cross motions for decisis, our rules on specifically, stare undisputed on consideration of facts. The on the binding prior panel law effect of the Society plaintiff circuit, court: dismissed as a decisions. panel may this one certification; decision, class not overrule the wrong, and denied found that or immune, prior panel of a all defendants were the absence either were inter vening contrary entities, superseding nonexistent im- decision were otherwise named; Supreme the court en banc or the Court.6 properly held that the earlier Mur- previous holdings Where two or lines of ray judicata; decision was res dismissed precedent conflict, opinion “the earlier con plaintiffs’ pendant state claims without binding precedent trols and is the imposed prejudice; Rule 11 sanctions. circuit.”7 Even a necessary decision not The court later struck the award sanc- support ruling, the ultimate such as an timely tions when defendants failed to holding, binding.8 Dicta, alternative request their attorney’s submit fee. however, persuasive authority is only, and plaintiffs appealed remaining The por- the binding.9 is not tions of the court’s order. case, In Murray the earlier Murray- previous that the We hold suit does not O’Hair plaintiffs argued and other action; Society this reinstate the bar they right juries, had a to serve on and that plaintiff; affirm the dismissal of the defen- they subjected were continuing pattern to a Herman; dants other than hold that Her- rights; of exclusion in violation of their Murray-O’Hair’s man did violate Free Ex- the district court question, framed the rights; absolutely ercise find Herman practice “Does the of a State trial court in qualifiedly damages; immune from suit for excluding jury persons service who grant relief; declaratory and decline to deny refuse to make an oath a vested inter- grant injunction. provi- est ... violate the Constitutional [or] 10 separation sion of of church and state?” II. Discussion violation, The district court found no hold- A. Stare Decisis and Preclusion ing without citation of authority that government argues, and the district Constitutionally pro- “Plaintiffs have no held, Murray-O’Hair’s constitu- sitting jury” tected interest on a tional claim judicata is barred the res jury deity oath refers to a which “[a] Murray effect of the earlier decision. We Clause; does not violate” the Establishment disagree. analyze We the relation between analyzed juror using the court oath Murray according and the instant case effect, (purpose, Lemon test factors principles just judicata, not of res but also entanglement).11 We affirmed in an un- decisis, estoppel, decision, stare collateral published holding and law of without citation perspectives, the case. From of these that: Co., 458, (earlier correct”; "presumptively

6. Pruitt v. Levi Strauss & 932 F.2d line cases is (5th Cir.1991); Connick, Umphlet preference authority “clearly v. 815 F.2d for the older 1061, (5th Cir.1987). exception, appropriate repeatedly An ... where has been [it] here, circuit”). panel acknowledged relevant is that "a motions decision as the law of this binding precedent.” is not Northshore Dev. v. Lee, 580, (5th Cir.1988). Pruitt, 835 F.2d 932 F.2d at 465. Co., 9. O’Dell v. North River Ins. F.Supp. Puckett, (5th Boyd 905 F.2d Cir. (D.La.1985). 1990) (citing County Alcorn v. United States In Cir.1984)), Supplies, terstate 731 F.2d — Court, denied, U.S. —, Murray v. Travis No. A- Dist. rt. ce 22, 1989) (W.D.Tex. 537; (unpub- 89-CA-1463 Mar. Gray, 112 L.Ed.2d United States v. However, opinion). (5th Cir.1985). lished the rule is always formulated in such absolute terms. Alcorn, added) 11. Id. (emphasis 731 F.2d at 1166 603, by requiring district court dismissed the case R.Evid. a witness to take [T]he plaintiffs affirmation, failed to state a an oath or where witness granted. relief can upon claim which felt that an affirmation had a district court Specifically, the determined nature inconsistent with her own faith. jury that because serve on a explained protection We that “the one, constitutionally protected is not a free exercise clause extends to all sincere plaintiffs’ cause of action had failed beliefs; courts not evaluate agree. a claim. to state We The occa- is, religious truth.”13 plaintiffs That jury sion to serve on a undeniably sincere belief that an affirmation has a duty, privilege, opportunity and an for implicate nature is sufficient to many actively personally citizens to free exercise Ferguson’s concerns.14 dis Indeed, government. op- serve their plenary replete cussion is with cita portunity many citizens to serve on a tions. jury only opportunity they be the light prior panel law on government. have to serve their Even decisions, we must decide whether Mur so, jury service has not been construed ray’s, comment on the oath casts constitutionally as a protected right. Ferguson doubt on or otherwise serves as Moreover, plaintiffs concede, ju- as the binding precedent in the instant case. We rors are not to swear an oath to thing, hold that it does not. For one this rather, deity; jurors simply are free to language, argument,15 bare of citation and make an testimony affirmation that the value;16 simply is of no decisional it is they are present which about to will be dicta. obiter the truth. An affirmation is no more than a solemn declaration made under significantly, More Murray was penalties perjury. We do not con- case; case, an Establishment Clause our sider, plaintiffs do, would have us an and Ferguson, are Free Exercise chal affirmation to be the same as an oath to lenges. gov The two kinds of cases are deity.12 by altogether erned legal different stand Thus, the language “Moreover” in Murray question ards.17 Even the of the that, suggests for Establishment Clause nature of an affirmation is distinct under purposes, an affirmation is not to be con- clauses; these Murray two and Fergu sidered to have nature and its suggest, inquiry son our in Establishment use in the courtroom therefore constitutes Clause cases is whether a “reasonable ob no violation of that clause. server” construe the affirmation as later, year

A Ferguson religious,18 in v. Commis whereas the Free Exercise sioner, (5th Cir.1991), 921 F.2d 588 query we held is particular whether this plaintiff that the tax court violated the Free Exer holds a sincere belief that the affirmation Clause, improperly cise religious.19 distinct, construed Fed. is inquiries These 12. Court, Murray County value,” v. Travis precedential although Dist. "prece- “no it is (5th Cir.) 47.5.1, (unpublished opinion), cert. de dent." 5th Cir.R. 47.5.3. —nied, U.S. —, 111 S.Ct. 112 L.Ed.2d 49 (1990). Kurtzman, Compare Lemon v. 403 U.S. 612-13, 2105, 2111, 29 L.Ed.2d 745 13. Id. at 589. (1971) County Allegheny v. ACLU Greater Pittsburgh Chapter, U.S. 109 S.Ct. 14. Id. 3100, 3101, 3119, 3124, (1989) 106 L.Ed.2d 472 (Establishment Clause) Employment Div. v. obliqueness language highlight- 15. The of this is Smith, 1595, 1599, 110 S.Ct. inconsistency ed an between the district and (1990) cases) (Free (citing L.Ed.2d 876 Exer- appellate decisions: the former refers to the cise). God, jury including oaths as a reference while the latter refers to affirmations without 3115, 3123, 18. Allegheny, 109 S.Ct. at such references. (reasonable test). observer Indeed, Murray unpub- since the decision is lished, opinion Ferguson, the entire is considered to have 921 F.2d at 589. Murray protects Hence, Exercise Clause even judica- as the Free Courts.23 is not res belief an affirmation an m«.reasonable ta. long as the religious, so belief is not “so (collateral preclusion As to issue estop- bizarre, clearly nonreligious so in motiva- pel), prior judgment we note that “for a 20 Accordingly, Ferguson ap- is the tion.” preclusive have effect particular as to a precedent. plicable issue, the doctrine estoppel of collateral preclusion (res judicata), As to claim (1) requires that: the issue at stake be is that the judica our rule earlier suit is res identical to the one in prior involved alia, inter if, parties ta “the identical [are] (2) litigation; the issue has been actu- suits.”21 both This condition is not met ally litigated (3) prior litigation; Herman here: was not a defendant the determination of the issue in the suit,22 privity first nor was he in with one: prior litigation has been a critical and nec-

the institutional defendant the first case essary part judgment of the in that earlier District Court, County was the Travis action.”24 None of these conditions are Pro County serves on the Travis above, met here: as discussed a Free Exer- bate Court, redesignated which is a Travis altogether claim cise different Court at Law. County Probate Court claim, Establishment Clause Murray’s County altogeth and the Courts at Law are separate er courts from the District discussion of the oath is not a “critical Bd., 707, 714-15, entit[y].” finding 20. Thomas v. Review U.S. This was based on an affida- Schless, Judge vit from Michael Local Adminis- ("The 'religious' determination of what is a be- County trative Law, of the Travis Courts at practice lief or is more often than not a difficult explains: who However, and delicate task.... the resolution entity County There is no known as the Travis question judicial upon of that is not to turn System. There are six Courts at perception particular practice belief or 1, 2, 3, 5, 6, County, Law in Travis numbered question; able, accept- beliefs need not be and 7. Each is an individual autonomous consistent, logical, comprehensible entity judge separately and the of each is a pro- others in order to merit First Amendment tection”); public elected official. Each is autho- (citations Ferguson, 921 F.2d at 589 rized law to sit for the other and the courts omitted) (“The protection of the free exercise administratively by are linked a scheme beliefs; clause extends to all sincere spelled out in the Government Code. truth”). courts not evaluate 1, 1987, County Effective October Law, Court at Court, redesignated No. 4 was Probate Point, 556, (5th 21. Nilsen v. Moss 701 F.2d Judge Guy Cir.1983) (en (citation No. 1 and Herman became the banc) quotation omitted); of that Court. None of the events de- see also Foret v. Southern Farm Bu Co., (5th Original Complaint pre- scribed in Plaintiffs reau Ins. F.2d Cir. Life 1990) and, therefore, Niben). (quoting statutory change requisites ceded this other are any judge that the same cause of action was involved in none of those events involved of cases, prior judgment both the was rendered any County County. Court at Law in Travis competent jurisdiction a court of and that it was similarly appear The district courts to be inde- Niben, judgment a final on the merits. 701 F.2d pendent of each other. See Tex.Gov’tCode Ann. at 559. (Vernon Supp.1991). 24.001-.021 & §§ addition, us, In from the record before we Murray 22. The defendants were the Travis County Dis- have no indication that the “Travis County Attorney District Court and the Texas participated Murray We trict Court” suit. General, Jim Mattox. only know dismiss was filed motion to County It is not at all clear that the “Travis defendant, Attorney Gen- other Texas legal entity. thing, District Court” is a one For eral. separate there are five district courts in Travis County. See Tex.Gov’t Code Ann. 24.- §§ Compare Tex.Gov’t Code Ann. 24.- §§ 23. 155, .200, .228, .248, (Vernon 1988). .264 None 007, .008, .155, .200, .228, .248, (Vernon .264 appear County to be called "the Travis District (describing Supp.1991) 1988 & district courts in Court"; rather, as, they are denominated for general County and Travis in District Courts example, the District “53rd Court.” particular) 25.- §§ id. at Further, unlikely concept it seems that the of 0003, .0021, .2291, (Probate and" .2292 Court single entity encompassing the various district Law). County Courts at county courts of a Considering is consistent with Texas law. analogous question an in the case us, Battery, F.2d before the court below found that defendant v. General Meza (citations omitted). (5th Cir.1990) System” “legal “Travis was not a in Fed.R.Civ.P. the decision.25 action suit as enumerated part” of necessary improperly conf- doing, In the court so Further, Murray district court's concepts of class certification and lated the facts to skeletal “fact reduction of In standing. O’Hair v. associational coupled with differences pattern,”26 (Former White, 691-92 5th 675 F.2d action, of makes causes evident parties and banc), Cir.1982) (en Society held that pure here is a we question “issue” that the rights of fact or of law, not one between plaintiff it was an proper was a because circuit, pure questions In this parties. suing of its mem- organization on behalf subject estoppel, to collateral law deprivation their respect to the bers with “change in only where there is no control voting rights under Texas law. For the legal principles the two deci ling between opinion, reasons set out same 27 Here, Murray if Ferguson sions.” Society has associational conclude that conflict, Fergu then are considered to be rights mem- standing to assert the of its represents change applica a drastic son imprisoned refusing bers not to be Accordingly, Murray law. does ble eyes in their affirma- what is estoppel provide a for collateral basis tion. Murray-O’Hair’s claims. separate question is altogether An complete Finally, for the sake of ought to whether the district court have ness, of the case. This we mention law this suit as a class action. certified only “during the applicable doctrine is Society plaintiff, it im- dismissing the as a pendency single proceeding, of ... a plicitly plaintiffs re-examination of de to do so. The operates to foreclose declined issue, on remand or on a sub cided issues either pressed appeal on this have not appeal.”28 Murray and the case sequent and we see no need to rule on the matter. altogether separate proceed before us are ings, inapplicable.29 the case is so law of ii. Defendants B. Parties The district court found that all

i. either defendants other than Herman were Plaintiffs entities, immune,30 were nonexistent

The district court dismissed the So improperly named. were otherwise We ciety plaintiff Society as a IV, VI, prerequisites agree, sections VII and satisfy failed to of a class and affirm Co., Int'l, Inc., (5th Quaker Hicks v. Oats McDermott Cf. 1981) 1989) added) ("The (unappealed (emphasis Unit A al- 1168-73 Cir. Cir. decision of grounds legal appellate ternate of decision do not have offen- court establishes the issue an effect; estoppel rejecting part sive collateral ‘law of the case’ and must be followed all ground” that the "alternative rule “if subsequent proceedings in the same case at both grounds, good two each is a decides a case on estoppel," subject appellate the trial and levels” to certain adopting position of Restatement — U.S. —, denied, exceptions), cert. 110 S.Ct. (Sec- generally Judgments). of ond) See Restatement 150, 107 L.Ed.2d 108. h; Judgments § 27 & comment C. of Miller, Wright, Cooper, A. & E. Federal Practice addition, provide exception we an to law 29. 4421, § and Procedure: Jurisdiction at 206-08 controlling authority where “the has of the case (1981 Supp.1991). & contrary applica law since made a decision of issues, clearly to such or the decision was ble supra 26. See sec. I. injus and would work a manifest erroneous 215, Inc., Offshore, v. Shell 881 F.2d tice." Gates 1167; Hicks, 27. 662 F.2d at see also Restatement — —, denied, (5th Cir.1989), cert. U.S. (Second) 28(2)(b). Judgments generally See § of 1320, Ferguson 108 L.Ed.2d 495 would 110 S.Ct. Miller, c; Wright, id. comment C. A. & E. Coo contrary trigger exception, this since it is to the per, and Procedure: Jurisdiction Federal Practice Murray dicta. 4425, (1981 Supp.1991). & n. 1 & § at 242-55 Bd., Judge found that Her- 30. The district court also Pegues 28. v. Morehouse Parish School added; 735, (5th Cir.1983) agree, (emphasis We and discuss this man was immune. omitted); quotations sec. II.D.i. and citations Schexnider v. matter infra opinion for the prisingly, IX the court’s reasons Supreme of Court has found the therein.31 stated principle same embodied in the Free Exer- cise Clause: “The Free Exercise Clause ... Claim C. Constitutional government means ... may not [that the] freedom is Religious primal compel religious affirmation of belief.”35 Constitution, guarantee of our compels government expres action The Free Exercise Clause extends religious suspect. sion adherence of protection its to “all sincere be by government Such involvement liefs”; it is of no moment that a belief unqualifiedly prohibited. is almost “acceptable, not be logical, consist begin analysis our ent, We this issue with comprehensible or to others.”37 Ac proposition official, the familiar that “no cordingly, we have little concluding trouble high petty, prescribe can what shall be Judge Herman’s attempt to coerce religion, orthodox in ... or other matters Murray-O’Hair affirmation, to take an de opinion force citizens to confess spite her sincere objections, was a act their word or faith therein.”32 Our violation of the Free Exercise Clause.38 protects just right Constitution to It is true that Free jurispru- Exercise speak, right but the to “refrain speak- dence exception admits an for claims “so ing ... of individuals to hold a bizarre, clearly so nonreligious in motiva- point of view different majority from the tion, as not to be entitled protection to and to refuse to foster ... they idea under the Free Exercise Clause.”39 But morally objectionable.”33 find prin- These Murray-O’Hair’s claim —that a ciples, God-free af- although bottomed on the First firmation is Speech Clause, “religious nonetheless a Amendment’s Free state- devel- ment,” oped response religiously-motivated objectionable hence not this far- —is objections speech.34 coerced Not sur- fetched. The fact that she is not alone in respect County, Barnette, With to defendant Travis (Wooley L.Ed.2d 876 al- susceptible though add that the cannot be exclusively upon speech "decided free 1983, liability grounds, § under Herman’s ... also involved freedom of reli- policy actions effectuated a as, gion”). of the State of Tex County. not Travis See Familias Unidas v. Briscoe, (5th Cir.1980) (county Smith, (citing 110 S.Ct. at 1599 Torcaso v. county judge not liable for actions of Texas Watkins, 488, 493, 495, 367 U.S. 81 S.Ct. county policy; effectuate state rather than state 1682, 1683, (1961) (quotations 6 L.Ed.2d 982 state, embody county, policy); statutes Tex. omitted) (“neither a State nor the Federal Code (prescribing Crim.Proc.Ann. art. 35.02 constitutionally person Government can force a oath); (same). Tex.R.Civ.P. 226 profess any religion”) a belief or disbelief in Educ., (quoting Everson v. Board 330 U.S. Barnette, Virginia 32. West State Bd. Educ. v. 15-16, (1947)). 67 S.Ct. 91 L.Ed. 711 624, 642, 1178, 1187, 319 U.S. 87 L.Ed. Verner, 398, 402, also Sherbert v. 374 U.S. (1943). (1963) (citing S.Ct. 10 L.Ed.2d 965 Torcaso) (Free Exercise Clause does not allow 705, 714, 715, Wooley Maynard, government “compel repug- affirmation of a 1428, 1435, 1435, (1977). belief’). nant Barnette, 34. See 319 U.S. at 63 S.Ct. at 1181 (Jehovah’s objecting religious Witnesses on Ferguson, 36. 921 F.2d at 589. grounds requirement to that their children sa- school); flag public Wooley, lute the 430 U.S. Thomas, 714, 37. 450 U.S. at 101 S.Ct. at 1430. 707, 713, 1431, (Jehovah’s at S.Ct. 97 at 1434 objecting religious grounds Witnesses to re- States, 966, Moore v. United U.S. 348 75 Cf. quired display phrase of “Live Free or Die” on 530, (1955) (court S.Ct. L.Ed. 99 753 erred in Hampshire plate); Roy, New license Bowen v. refusing religious objection to accommodate to 693, 704-05, 2147, 2154-55, 476 U.S. 106 S.Ct. 90 affirmation; “solemnly” use of the word (1986) Barnette) (“In (citing L.Ed.2d 735 cases requirement is no that the “[t]here emnly word sol upholding challenges First Amendment ... affirmation”), rev'g be used in the 217 showing Court has often relied on the that com- 428, (1954). 430-31 pulsion activity religious signifi- of certain involved”); Employment cance was Smith, Div. v. 872, Thomas, 715, 494 U.S. 110 S.Ct. 108 450 U.S. at 101 S.Ct. at 1430. 1216 currency speech of audible nor is evidence coerces neither on affirmations40

her views this,41 statutory references are display. speaker’s as A voice and man- visible and affirma- of oath merge concepts her, personal currency to while nerisms define too dictionaries tion.42 Law public, utterly fungible. personal, affir- with oath: both interchangeably mation affirmation and active nature of a coerced provide one defini- Black’s and Bouvier’s trivial, readily it far from dis- renders a “solemn tion of the term aphorism. tinguishable greenback from a nature of an oath.”43 asseveration holding in this case is consistent Our religious connotations of an oath While Supreme Court case on the observers, with recent stronger to most probably seem Clause, Murray- Employment to dismiss Exercise Div. v. license Free unentitled of affirmations as 872, 1595, O’Hair’s view Smith, 110 108 494 U.S. protection; to her and Free Exercise (1990). Smith, the Court L.Ed.2d 876 others, surrogate affirmation has become a rejected American’s ob- a Native of its tradi- suspect that is word use, jection criminalizing peyote to a law religion. As Mur- tional association with holding exercise that “the of free ray-O’Hair’s claim is not “bizarre [or] does not relieve an individual of the obli- motivation,” clearly non-religious in we gation comply with a ‘valid and neutral protection that it is entitled to the conclude general applicability ground law of on the the Free Exercise Clause. (or proscribes prescribes) that the con- law Murray-O’Hair’s objections be Nor can (or pro- religion prescribes duct that his trivial, way that one dismissed ”45 However, scribes).’ the Court re- challenge to a Free Exercise dismiss govern- principle affirmed the that “[t]he “In Trust” on U.S. presence God We compel affirmation of reli- ment public An affirmation is a coins and bills. gious belief” and observed that “we have attestation, “readily associated with” the appli- held that the First Amendment bars generally speaker, “currency is whereas neutral, applicable generally cation of a law pocket and need not purse carried in a religiously motivated action cases [in displayed public. to the The bearer involving] the Free Exercise Clause con- publicly currency is thus not guarantees, junction with other such as More- the national motto.”44 advertise Thus, speech.”46 specif- freedom of Smith over, requires that an affirmation ically excepts religion-plus-speech cases actually utter the words speaker herself holding. sweep the motto on from the of its objectionable, she finds while (“swear” passing Ferguson, We note in that other sources define 40. See 921 F.2d at 588 repugnant religion. witness for "affirm" both 67 the word without reference to 1397, Idaho, reasons); 6; 1399- Gordon v. C.J.S. Oaths & Affirmations at Webster’s § Moore, (9th Cir.1985) (same); 217 F.2d at 400 (una- Dictionary Third New International cf. (member of the Harshmanite church 430-31 1967); bridged Collegi- ed. Webster's Ninth New religious scruples to use the declined due to (1990); Dictionary English ate I Dic- Oxford affirmation). "solemnly” in word 1971); tionary (compact ed. American Heri- (New tage Dictionary English Language Lee, 41. See United States v. 257 n. 1976); (1965); College Encyc. ed. Brit. 233 6, 71 L.Ed.2d 127 1055 n. (1965). Encyc. Brit. 815-16 J.) (Amish (Burger, objection to Social Security program payroll taxes could not be Wooley, 44. See 430 U.S. at 717 n. 97 S.Ct. at challenge light held bizarre in of similar (distinguishing public 1436 n. coerced faith). member of Sai Baba speech requirement plate license bear — 1.07(a)(22) (defi- 42. See Tex.Penal Code Ann. § state motto "Live Free or Die”—from use of nitions) (" affirmation”); 'Oath' includes ”). currency bearing motto 'In God We Trust' (same). U.S.C. 1 § Lee, (citing 45. Id. 110 S.Ct. at 1600 455 U.S. at (abr. 1983) Dictionary Black's Law 5th ed. 3, J., (Stevens, 263 n. 102 S.Ct. at 1054 n. 3 added). (emphasis See also Black's Law Dictio- concurring judgment)). (definition ) (6th ed.) (avail- nary of affirmation Westlaw); Dictionary Law able on 1 Bouvier's 1599, (1914). 160 46. Id. 110 S.Ct. at

1217 Notwithstanding language only the broad in evaluating Ferguson’s Ms. religious Supreme pre-Smith precedent, Court’s belief, concluding that it did not violate argued limits are it that some any ‘recognizable religious scruple,’ but necessary, religion-plus-speech even in conditioning also in her testify cases, in order to ensure that accommodat- present evidence on what perceived she 51 ing religious the individual’s belief does not a violation of that belief.” holding This “radically operating restrict latitude” equally is applicable Murray-O’Hair’s government.47 Whether such a re- case. a matter required prece- striction is do not dent is a matter we decide.48 None- D. Remedy

theless, willingly set such a we limit in the i. Damages case, clear, instant it is for exam- outright ple, that an refusal to make some Murray-O’Hair seeks damages on pledge49 kind of would frustrate opera- account of Herman’s actions. We find that judicial system. any event, tion of the In absolutely qualifiedly im Murray-O’Hair did not exceed these limits. mune from damages. suit for willing She indicated that she was to serve judge A absolutely immune from jury duty, judge, her but the rather than damages suit for resulting act of asking pledge her what sort of she could judicial nature.52 In determining judi make, instead debated correctness of act, cial nature of an inquire we whether: her declaratory beliefs. (1) complained the act of is a normal grant,50 relief that we we set forth a more judicial function; (2) the events occurred proper approach. judge’s chambers; (3) court or Although we have reasoned here from controversy centered around a case then principles, first we observe that our hold- pending judge, before the ing in compelled by this case is our own confrontation directly arose and immedi- precedent In Ferguson as well. v. Com- ately out of a visit to the in his missioner, (5th Cir.1990), 921 F.2d 588 judicial capacity.53 held that the tax court violated the Free Exercise failing Clause district court correctly accommodate found that objection witness’s to a judicially God-free Herman was immune from attack affirmation: district erred not on the basis of his issuing judgment “[The court] Lee, O'Hair, (quota- that, 455 U.S. at 102 S.Ct. at (holding 1056 675 F.2d at 691 omitted). tions standing purposes, potential juror who would aggrieved not swear to her belief in God “is ... laws, Security 48. Lee involved the Social tax by being jury duty excluded from because of her speech. a restriction on See id. at religious belief’); lack of Nicholson v. Board of at 1053. Ass'n, Commrs. Alabama State Bar oath, affirmation, vow, promise, adjura- (M.D.Ala.1972) 49. Or F.Supp. (three-judge dis- tion, asseveration, avowal, declaration, court) or com- (statutory required trict oath for admis- matters, judicial sys- mitment. In such some bar, God,” containing help sion to words "so me apparently flexibility quite literally tems have a Clause); Gordon, violates Free Exercise beyond words: (party give F.2d at cannot be sophistication Eng- With the derived from against oath or affirmation beliefs trader, land’s role aas world its courts have inquiry by court as to less offensive saucer, permitted Chinese to break a a Mo- alternatives); (revers- Looper, F.2d at 1407 hammedan to bow before the Koran and touch it to his head and a Farsee to tie a ing conviction where defendant was not allowed rope testify objected because he to use of God’s qualify around his waist to them to tell the affirmation). name in truth. Looper, United States v. 419 F.2d 1407 n. 4 Blackwell, (5th 52. Brewer v. 396 219, 1969) (citing Wigmore, Cir. Evidence Cir.1982); White, Forrester v. [, (Chadbourne Rev.1976) ]). § 1818 at 391-92 (1988). L.Ed.2d 50. See sec. II.D.ii. infra Brewer, (citations 51. Id. 692 F.2d at at 590-91. Other cases from 396-97 omit- this and ted). other circuits have reached similar conclusions. 1218 im- protected by qualified contempt an affirmation is Issuing judgment of a

contempt. function;54 Herman judicial munity, district court concluded. as the is a normal court; dire in his the voir the order issued We have held that for case or cases centered on some process [pjublic are ... immune from officials some evidently had Judge Herman which liability conduct violates a unless their controversy responsibility; and judicial clearly established constitutional or stat- im- directly and during arose occurred and norm, utory question necessarily a in to mediately out of a visit legal certainty answered of the judicial capacity. his enjoys qualified An official immu- rule. However, Murray-O’Hair and as nity if a reasonable official would be left out, point one can view the district application of the of the stan- uncertain lens, through a different controversy this confronting him.56 dard to the facts compel attempt to focus on Herman’s and Here, readily conclude that the un- affirmation, juror Murray-O’Hair to take a of Herman’s actions would not lawfulness subsequent jail to decision rather than official, as apparent to a reasonable Viewed this fash her for her refusal. clearly ion, commonly provide57 less enti Herman’s actions are and rules statutes immunity, the Su because tled to absolute offered as an alternative to affirmations be implied that the selection preme has oaths, long-stand- the evident and under judicial nature.55 jurors is not an act of a ing58 assumption that this alternative to meet the concerns of those sufficient scope absolute if outside the Even Thus, religious objections to oaths.59 immunity, attempt to administer with Herman’s 294, 1.07(a)(22) (definitions) McIlhany, § 298 Tex.Penal Code Ann. See Adams v. 764 54. 1101, affirmation”); denied, (" (5th Cir.1985), includes Tex. Const. art. cert. 474 U.S. 106 ‘Oath’ 883, (1986); I, affirmations”); (referring Liles v. Rea to "oaths or § 5 493, Cir.1986). (8th (similar). gan, art. 804 F.2d Tex.Rev.Civ.Stat.Ann. 348, 339, Virginia, parte 100 U.S. 55. See Ex See, e.g., ("every & Will. ch. 34 58. (1880) (judge immune from crimi L.Ed. 676 Quaker ... shall instead of the usual Forme be charge selec nal for race discrimination permitted make his or her Solemne Affirma to tion, "duty selecting jurors might as form, prescribed tion or Declaración” in which private person well have been committed to God) (quoted part to in I included reference jurors judge_ are selected to That the ... (compact English Dictionary ed. Oxford are court- for a court makes no difference. So Case, (C.C.D.C. 1971)); 16 F.Cas. 151 McIntire’s sheriffs, criers, tipstaves, & c. Is their election 8,824) 1803) (No. (juror Quaker who was not a act?”), appointment judicial quoted in For any particular and "not attached to rester, 108 S.Ct. at 544-45. affirm); Bryan’s permitted sect” was not Case, (No. 2,063) (C.C.D.C. 1804) 4 F.Cas. 506 Stice, Hopkins 1030-31 (Methodist juror, previously who had been Cir.1990) (citing Creighton, Anderson v. juries sworn on and who did not know whether L.Ed.2d 523 being contrary princi was to Methodist sworn (1987)). sworn, affirm); permitted ples to be was not (C.C.D. Wright, 2 F.Cas. 647 Bank Columbia v. See, advisory e.g., Fed.R.Evid. 603 committee 883) C.1827) (No. (witness generally who wor (rule providing for affirmations in lieu of note with, of, Quakers, shiped but was not member designed flexibility re oaths “is to afford the affirm; construing Mary permitted was not dealing quired adults with [and] only applicable land statute its terms II, atheists_”); § see also U.S. Const. art. sects); King specified Quakers and other v. Fear office, assuming (upon cl. President "shall son, (C.C.D.C.1829) (No. 7,790) 14 F.Cas. 520 following 1 do take the Oath or Affirmation: Quakers, (witness, worshiped who whose VI, (or affirm) ”), solemnly swear ...’ art. cl. 3 application membership pending, was executive, (legislative, judicial officers of member, regarded respects in some who was governments state “shall be bound federal and by affirm). permitted to support the Constitu Oath or Affirmation” tion); (providing for affirmation in § 1 U.S.C. 1 oath); 43(d) (permitting assumption That an is both old and familiar lieu of Fed.R.Civ.P. correct, oath); it but these characteris- “solemn affirmation” in lieu of Fed.R. does not make (same); 9012(b) 28 U.S.C. tics do increase the likelihood that reasonable §§ Bankr. clerks, ignorant assumption’s justices, judges, deputy (empowering official could be affirmations"); falsehood. clerks to administer "oaths

1219 stated, type of the enjoys qualified judge may impose if not absolute immunity. such penalty may provided by be law perform jury refusal duty. Declaratory

ii. Relief not, course, Immunity Injunction does of insu iii. eq Herman from the reach of our

late Having granted relief, declaratory Indeed, grant power. of immu uitable see in this case no reason to issue an nity damages for constitutional error injunction as well. Considerations of comi more, declaratory grant makes the relief decorum, ty and present similar to those less, equitable. contexts,61 abstention Younger suggest Therefore, we declare that enjoin judges that we state only where judge prospec is confronted with when a a necessary compliance to secure with our refusal, grounds constitu juror’s tive Here, decisions.62 we have no reason to beliefs, tionally protected af swear or suppose declaratory judgment that our questions voir dire truthful firm to answer inadequate, would be should the circum judge person should either allow the ly, the again. stances of this case arise Accord jury duty penal to withdraw from ingly, we exercise our discretion and de prospective juror an alterna ty or allow the grant injunctive cline to relief.63 requires him or her to make some tive that public form of serious commitment to an III. Conclusion truthfully transgress that does not swer only It need is written that one “render sincerely held The prospect’s beliefs. things ... unto that are Caesar Cae- require prospective judge may juror a 64 Among things sar’s.” those are ser- (1) specific objection, basis for state: testimony. vice and truthful But in assem- public form of serious commit and what truth65, bling juries seeking prospective ment would accord with the judiciary is constrained Caesar’s juror’s constitutionally protected beliefs. centurions Constitution. While black-robed may require any judge The form of avowal may pledge veridicality, they exact some symbolize[s] that “states[s] [the may require protesting citizen to ut- the truth witness tell and which ... will] expression ter what is to her an impress upon purports to the necessi [her] accompanying faith. our footnotes at- As doing.” Nothing ty may for so more be test, choose, restraint, judges may sincere, compelled impinges upon if it con tincture their refer- text with a stitutionally protected beliefs. It is not for not, two; they may ence or even a validity logic to determine the fashion, compel seemingly minimal others prospective juror’s beliefs. Beliefs sin is in to do likewise. Constitutional rejected only they patently if expression. compulsion, not in bizarre, insincere, or not related to the free prospective acknowledge popular view that religion. ju exercise of If the We unwilling affirmation-taking is not a exer- ror is to make avowal ("comity restraint Looper, 419 F.2d at 1407. See also Fed.R. and federalism ... [counsel] rule, enjoin although applica the actions This not itself federal courts called on Evid. 603. officers"); judicial Wooley, proceedings, 430 U.S. at to state is instructive. See also of state ble 711-12, Kern, (although practical Madeley v. Cir. 97 S.Ct. at 1433-34 State, 1974) (citing Craig declaratory injunctive v. relief is or- 480 S.W.2d effect of dinarily virtually O’Hair, identical, generally (Tex.Cr.App.1972)); can 675 F.2d at 695. declaratory protect plaintiffs interests with rendering injunction unnecessary). judgment, Harris, 37, 44-45, Younger 61. See 401 U.S. 746, 750-51, (1971) (dis- S.Ct. 27 L.Ed.2d 669 Nicholson, F.Supp. Federalism”). at cussing 63. See "Our Allen, 522, 528, 64. Matthew 22:21. 62. See Pulliam v. (1984) ("injunc truth, awarded”); ("and ye against judge rarely shall know the tive relief John 8:32 Cf. free”). you make id. at & n. 104 S.Ct. at & n. 20 and the truth shall not as decision should be understood majorita- Our cise, not labor within we do but means, exhor- responsibility by any is to but as Our chastisement jurisprudence. rian ethos, majority but the Con- the Free Exercise not the reminder that apply tation—a here, great more; enforces something That document requires stitution. Clause orthodoxy; permits it no com- religious designed no to elicit interaction back-and-forth religious expression. provisions Its pelled juror cooperation protesting from a positive the just popular, but also protect not the or witness. sensible, un-; also the just the not opinion we For the reasons stated this return, (seemingly) silly. In the Constitu- plaintiff; AF- Society the as a reinstate of tolerance repays tion our investment of de- the district court’s dismissal FIRM autonomy and of individual with a dividend Herman; than AFFIRM fendants other freedom, great mea- social freedom— damages and in- court’s denial of district pet- sure, religious hostilities and from the relief; declaratory relief grant junctive rent nations ty oppressions that have REMAND to allow forth above. We as set globe. throughout history and across whether to exer- the district court to decide price pledge is a small An unconventional pen- Murray-O’Hair’s jurisdiction cise over for, conscience, liberty when pay for claims, proceed- and for further dant state rights, ulti- Murray-O’Hair’s we enforce opinion.67 ings inconsistent with this not our own as well. mately, we enforce erred, holding that GARWOOD, Judge, dissenting. Circuit say that he was not courte- do not mean to respectfully I dissent. was, thoughtful. apparently He at ous and colleagues in their reverence join my I perhaps intemperate deci- up least until his And I ac- nation’s Constitution. Murray-O’Hair.66 But he was for our jail sion to regard cordingly that what the Constitu- sufficiently knowledgeable with believe guar- subject of oaths and affir- primacy says of the Constitutional tion on the to the Exercise, starting Free which is to be should be at least antee of mations watched, policed rarely if ever tres- The Constitu- point for our consideration. passed. judge’s duty subject places, The was to fashion speaks tion to this several of commitment to truth and prominently statements in clause 3 of Article YI: most room, integrity jury jury and the box Representatives be- “The Senators and everything for and to do that would make mentioned, and the Members of the fore integrity. juror The must be able absolute Legislatures, and all execu- several State commitment to rectitude to articulate her Officers, judicial both tive finding juror or and truth as a without bias States, of the several United States and judge duty to fashion prejudice. had by Oath or shall be bound Affirmation prospective juror so a statement for Constitution; support this but no reli- concepts. elucidate these that she could required be as a gious Test shall ever to do. This he failed Qualification any public or Office (Em- under the United States.” did Trust sayWe that what added).1 error, phasis an intentional evil. but it was not jurors phrase contempt vastly conclude with the administered to 66. We note that the sanction you Murray-O’Hair help Crim.Proc. penalty "so God.” See Tex.Code exceeds the to which (venire), (grand jurors), subject simply failed Ann. arts. 19.34 35.02 would have been had she (ve jurors); (impaneled appear Tex.R.Civ.P. service. See Tex. Gov’t Code 35.22 nire), State, |100 Craig (maximum (impaneled jurors); fine for failure §Ann. 62.111 (Tex.Crim.App. & n. 6 impaneling); see also Tex. 480 S.W.2d 682-84 to attend court for Kern, (maximum 1972); Madeley v. $50 Code Crim.Proc.Ann. art. 35.01 O'Hair, Cir.1974); juror’s appear F.2d at 695. at start of trial fine for failure called). when name to oath or affirmation are: 1. Other references I, 6, providing opinion clause that Article section 67. Because this concerns affirmation God, impeachments "they shall when the Senate tries reference to we have no occa- Affirmation”; II, scope constitutionality Article section be on Oath or sion to consider 8, providing President "shall take require clause that the of the Texas rules which that the oaths it, equivalent invoking the Constitu- make of an oath appear that thus It would affirmations, deity religious obligation. or To some as distin- recognizes that tion may the word “affirm” have the same sort tests, oaths, guished from significance must the word government officers others; similarly, does to to some “swear” affirmation,2 and, an oath to take either raising of a hand on such an occasion extension, requiring wit- implied making constitute of a nesses, per- the like to do so is jurors, CIR, Ferguson v. sign. fectly proper. Cir.1991) (witness considers use of the the speak does not to The Constitution prohibited by “affirm” to the word be same making manner of an affir- exact form or preclude Biblical directives that use of oath),3 (or reasonably it is an but mation Idaho, Gordon v. State “swear”); of the that what was intended was inferable (9th Cir.1985) (wit- formal, conscience-arousing, sort of same “religious objection had ness Gordon to personal express unequivocal commit- taking using an oath or ‘affirma- word witness, case of a to tell the ment —in the tion.’ The court abused its discretion officer, appropriate before an truth —made insisting that use either the word Gordon but with- oath, taking is involved in an as light ‘swear’ or ‘affirm’ in of Gordon’s sin- or involvement the latter’s invocation out religious objections”; has cere “Gordon deity or obli- any form of raising demonstrated that his hand gation.4 swearing making an oath or an affir- say particular some is not to sincerely-held religious This mation violates his Looper, United States v. aspect beliefs”); of the form of what nonessential (4th Cir.1969) (witness, fore- an affirmation within the tendered as F.2d 1405 member God, may objects none- on reli- general definition of Radio Church of going hand, grounds holding up be, upon gious to his person to the called theless impress person taking it following Affirmation—‘I do sol- firmation does not the emnly Oath or (or affirm) (Footnote faithfully religious obligation.” swear that I will with a sense of Four, providing “no omitted). Amendment execute cause, issue, upon probable shall but Gold, warrants Wright Practice and See also & Federal supported by Oath or affirmation.” § Procedure: Evidence 6044 at 274-75: does at Evidence] "Rule 603 Rules of [Federal Watkins, U.S. 81 S.Ct. Torasco v. Cf. necessary suggest characteristics of least two down, (1961) (striking un- First, they are both oaths and affirmations. Amendment, Maryland require- der Fourteenth declarations to tell the truth. This means "a declaration of ment that state officers make an un- or affirmation must contain an oath reaching without belief in the existence of God” equivocal promise to relate or commitment question Vi’s “no Test" whether Article Second, these declarations must the truth. language applies as well as federal offi- to state cers, inferentially relying by analogy in a solemn manner calculated on the administered principle). same the conscience and remind to awaken duty speak the truth. witness of exception unique presi- 3. With the sole in which the conscience of the “The manner dential oath or affirmation. oath, however, by an witness is awakened that effect from the manner in which Affirmation, differs Am.Jur.2d, See, e.g., Oath and sig- by produced and has a an affirmation 3 at 1048-49: § and content. nificant effect on both form oath, sense, an in its strict involves "While oath, appeals to of an the witness the case calling God to witness what is idea of truth, God or otherwise invokes God for assistance an under- an affirmation is averred taking promise to tell the equally connection with his to tell the truth as solemn as oath, Deity.... purpose but does not invoke the for the truth. God is involved an alternative The affirmation has evolved as impressing seriousness of the witness with the unable to take the for those who are oath, divine and with the threat of the occasion the oath conflicts with either because punishment lying. affirmation does An they religious principles do their or because Rather, the conscience of invoke God. (Foot- any religion at all.” not subscribe to manner witness is aroused the solemn omitted). there be those—and merely asking you advised “I am to affirm suggests appellant record that in this questions pro- that whatever would be among object them—who to O’Hair is not give pounded you, you to that will true formally making, public to a official autho- responded trying “I answers.” O’Hair am affirmation, rized to administer an oath or participating religious in a state- to evade express unequiv- declaration of any sort of ment”; Judge “I am not Herman stated truth, personal commitment to tell the ocal asking you participate religious in a to by any such exercise its on the basis that statement”; “an af- O’Hair then asserted (or very religious in character nature firmation, my understanding, religious is a religion) objector’s contravenes the so that statement”; Judge to which Herman re- person express- either by engaging in it the agree you joined “the Court does not with (or belief) religion a es a belief in on that matter.” something not have or does that he does showing There is no that O'Hair ever by religion. Purely for ease forbidden anything generic objec- made other than a reference, variety I refer to this ob- process. tion to the entire affirmation She jection “generic” objection. as a I conclude Judge objected never told Herman that she that the Constitution does not mandate that “affirm,” particular to the word or to rais- sustained, generic objection be but such a hand, specific ing any her or to identified government require permits rather the being aspect of what she was asked to do. thus-objecting formally make to witness significantly, Most O’Hair never informed appropriate express officer some decla- Herman, implicitly, Judge expressly or that unequivocal personal commitment ration of him willing formally she was make to view, my the accom- to tell the truth.5 personal any express sort of declaration of expressive modation of free- commitment to tell the truth or that “what- the needs of civil administration dom with propounded questions ever would be in has in essence been made the constitu- you, you give that will true answers.”6 provisions allowing affirmations in tional Judge Nor is there indication that Her- oaths, requiring lieu of one or the other advantage man took of or tricked O’Hair. prohibiting religious tests. while contrary, Judge pa- On was my her, ultimate conclusions do not engaged dialogue Thus far tient and all, off; depart significantly, obviously if at from those of did not cut her she was majority, prepared repre- however different be the for the occasion and was arriving by counsel. roads we have travelled there. sented majority opinion holding personal declaration of commitment to tell the 5. Nor do I read the specific otherwise. truth if it but omitted that word (and/or Judge gesture); or that had Herman so suggestion Similarly, there is no understood he would nevertheless have insisted merely Herman understood O'Hair to be ing mak- (or the word “affirm” on hand rais- on use of (or objection specific to the word "affirm” ing). hand) raising willing of her and to be to formally express make to him some sort of explanation respect, present In this case is far and refused to consider her relied on removed from those decisions tendered form of declaration taken from defendant, majority. In Moore the approved by Supreme the Louisiana Church, of the Harshmanite was member Court Staton v. Fought, So.2d 746 “declined, had testify not allowed to as he (La.1986). Moore, We relied Looper, on scruples against oath because Gordon, concerning and observed ‘solemnly’ in taking, to use the word af- Ferguson, latter: “Like Ms. object- Gordon The firming Supreme to tell the truth.” using ed to either the word ‘swear’ or ap- on reversed the conviction direct ‘affirm’ and offered an alternative state- observing requirement is no peal, “[t]here ment. The Ninth Circuit held that the trial ‘solemnly’ the word be used abused his discretion refusing to specific Thus there affirmation.” was a proposed even consider Gordon’s alterna- word, and, objection specific to a inferen- Ferguson, tive.” Plainly, 921 F.2d at 589. willingness tially, a manifested to affirm Ferguson compel here, does not the result specific use of that word. witness, pro for there the se unlike the Moore, relied Looper court and reversed O’Hair, counseled affirmatively indicated appeal, on direct conviction willingness her satisfactory to make a dec- defendant, a member of the Radio Church judge. laration to the God, testify not allowed to he when Further, Moore, it must recalled be judge’s refused the direction that he “hold Gordon, Looper, and Ferguson are all di God,” up appeal hand and to al- appeals. rect federal This is a section 1983 though the defendant informed the “I challenging suit the actions of a state you if in If can’t it has God’s name it. ask judge previous in a truth, proceeding state I before say me if I’ll tell the can that” and him. hand, Looper purports Neither Moore nor up my Judge.” “I hold can’t There principles. to invoke facially religious, the demanded form was constitutional While made, specific objection was and there was and Ferguson Gordon do invoke the First willingness Amendment, an indication of a they clearly affirmative to do so in the con specifically in make a declaration which the applying interpreting text of and the rather objected-to matters were removed. A di- open-ended provisions of Fed.R.Evid. 603 panel Ninth in vided Circuit Gordon relied (and related Federal Rules of Proce Civil Looper reversing on Moore and in on direct dure). Nor do either or Ferguson Gordon appeal the dismissal of a civil action due to purport constitutionally to be based inso pro plaintiff’s se refusal to take an they may expressly impliedly as far form, precise including in the affirmation speak to the matter of what burden rests “affirm,” the word which the district court judge, objecting on the and what on the specified “despite had Gordon’s party, respective positions to their make objection using to ... the word ‘affirma- Indeed, clear to one another. ob Gordon ” majority tion.’ 778 F.2d at 1400. The “[b]y failing explore serves to less restric held that court abused its discretion “[t]he assuring deposition tive means of truthful insisting that Gordon use ... the word testimony, the district court abused its dis light ... ‘affirm’ in of Gordon’s sincere cretion_” Id., (empha 778 F.2d at 1401 religious objections.” Again, Id. there added). heavily In Ferguson sis we relied specific objection specific was a to a word. Gordon, adopted inferentially and Thus, approach. Ferguson same observes Ferguson our recent decision we re- attempted if the Tax Court “had to appeal versed on direct a Tax Court deci- Ferguson by inquiring accommodate Ms. government, holding sion for the that that objections considering pro into her and her refusing pro court erred in to allow se alternative, posed the entire matter taxpayer Ferguson testify to she when resolved,” “affirm,” particularly have not would not use the word been which ing Ferguson regarded equally prohibited by she this connection that “Ms. proceeding pro Ferguson, 921 Bible as the word “swear.” The Tax Court was se.” gave any her almost no chance to make F.2d at 590-91. that, mat- principle or There is no indication should the simply no warrant

There is “abuse of transmuting arise, authority ter his own again he would not of mandate. into a constitutional discretion” proceed enough more “back-and-forth support nothing to Moreover, find I majority’s bless- achieve interaction” majori- in the necessarily implicit show- ing. significantly, notion— there is no More constitutionally a state ty’s holding—that ing any real and immediate threat that prospective requiring wit- barred Judge again upon by called O’Hair will represented by one juror, especially ness or Herman to take an oath or affirmation. counsel, adequately par- articulate each nothing to indicate that O’Hair has There ticular, aspect proffered aof oath specific Judge Herman since the ever been before which there is objection affirmation any- question, or that there is incident objection. for each and the reasons likely thing pending or threatened that is O’Hair, though represented by counsel County, bring her before him. Travis so, opportunity to do made given full live, has where O’Hair any specific, par- objection to identified no residents, 500,000 judges, 13 district over gesture procedure word or ticular judges, probate court county-court-at-law designed her a formal decla- to have make peace. five judge, justices personal to the of her commit- ration truth; suggested no these, ment to tell the she O’Hair In circumstances such form; and never indicated alternate she de appear standing to lack to seek would to make form of such any willingness claratory against Judge relief Herman. Nothing establishes that a declaration. City Angeles Lyons, Los v. 461 U.S. indeed, has) (or, anything other O’Hair had (1983); generic objection procedure. than a Zwickler, 103, 89 v. Golden circumstances, Judge Herman did In these (1969); King, Rocky L.Ed.2d 113 by insisting Constitution not violate the (5th Cir.1990); v. Ed 900 F.2d 864 Brown either sworn or affirmed. that O’Hair be wards, (5th 1446-47 Cir. 721 F.2d any Finally, to me that in it also seems 1984); Virginia Medi Northern Women’s wholly this inappropriate event it is Batch, 1048- cal v. 617 F.2d Center declaratory relief grant O’Hair Cir.1980). if there Even were Judge against Judge Herman. Herman is declaratory standing, granting of relief defendant, is the sole and O’Hair the sole in the sound discretion of the trial “rests respect grant plaintiff, with to whom Kane, Wright, court.” Miller & Federal or No one else is benefitted such relief. 2d Practice and Procedure: Civil § thereby. The made the incident ba- bound comity at Considerations of and the concluded, place, of took sis this suit gross remedy intrusiveness of —micro years ago. Except as more than three managing judge’s handling future state discrete, incident, regards completed process involv any oath or affirmative relationship pending dispute is there no ing particular individual—balanced Judge Herman and O’Hair. In his between against speculative nature the remote dealings particular pre- on with O’Hair controversy between any future relevant occasion, Judge apparent vious it exercising any parties, strongly point Herman, majority his insofar as the finds deny declaratory such discretion so as unconstitutional, pre- conduct followed no Arnold, v. relief.7 Seniors pro- manner conceived set or standard Cf. least, (5th Cir.1960). very At the such (either ceeding own creation or granted with appeal relief should not law), specified by state or local but rather having by the trial out been first addressed entirely ad hoc. He was faced with a acted dealt with it as best he could. court. situation and (under practical the ma- only of the declarato- have recovered from him

7. The real effect personally ry Judge analysis) qualified jority’s relief to make had he not had fees, attorneys' likely a far liable for O’Hair's immunity. absolute significant any damages she more amount than judgment uphold I would event, And, I favor.

Herman’s declaratory relief grant O’Hair

would accordingly dissent from him. I

against holdings. contrary majority’s

FEDERAL DEPOSIT INSURANCE

CORPORATION, Corporate in its

Capacity, Plaintiff-Appellee,

v. HAMILTON and Dee Iva Ham

Clifford

ilton, Defendants/Third-Party

Plaintiffs-Appellants,

FEDERAL DEPOSIT INSURANCE COR

PORATION, as Receiver for Texas Company, Larry

Bank & Trust

Tester, Third-Party Defendants-Appel

lees.

No. 90-1395. Appeals,

United States Court of

Fifth Circuit.

Aug. notes given and re- the declaration is in which 6, p. "The affirmation has See also id. at 1050: § omitted; (Footnotes emphasis add- ceived.” purpose to bind the [as oath]: the same ed). only the af- difference is that conscience. on, however, that has From here the destinations affirmation any oath or well as “ course, ”). these distinct. in it’ Of name ‘God’s See, genre. exhaust the examples do not Judge Herman advised O’Hair that he States, e.g., Moore United “right your con- respected her to exercise (1955) (error L.Ed. religion rights to freedom of stitutional by member of Harsh- testimony prevent and, therefore, I will offer an affirmation declined “because manite Church who statement, any recognition any use the word ‘solemn- religious scruples, to anything to God reference truth”; ly’ affirming to tell nature, you “[t]here and at this time I would like ‘solemnly’ that the word requirement your is no affirmed raise hand and be affirmation”). added). (emphasis replied be used Court” O’Hair affirm, just “I cannot sir. That is as reli- foregoing, contrast to the In marked Judge Herman then gious as an oath.” however, nothing

Case Details

Case Name: Society of Separationists, Inc. v. Guy Herman, Judge of the Travis County Court at Law

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 28, 1991

Citation: 939 F.2d 1207

Docket Number: 90-8660

Court Abbreviation: 5th Cir.