On December 14, 2004 Alabama Judge Ashley McKathan stepped into court adorned by a judicial robe embroidered with the Ten Commandments.  Stitched in large print, the Biblical statements were legible to everyone in the courtroom.  “You can’t divorce the law from the truth,” he stated.  “The Ten Commandments can help a judge know the difference between right and wrong” (Associated Press, 2004).  In reaction, Former Alabama Chief Justice Roy Moore reiterated McKathan’s sentiments, stating, “it is time for our judiciary to recognize the moral basis of our law” (Associated Press, 2004).[1]

Law and religion are often mixed in American culture.  With the country’s underpinnings set in Judeo-Christian thought, many see it as inevitable for religion to work into the seams of United States policy and traditions.  From the use of a holy book for swearing in witnesses, to the formidable placement of the Judge upon the pulpit, and jurors referring to the Bible to help reach their verdicts,[2] religious undercurrents are felt in courtrooms throughout the country.  Many accept these undercurrents as inescapable and an ingrained aspect of the legal realm, but several studies have begun to show the negative psychological effects of religious salience within courtrooms, hindering juror decision making processes (e.g., Howard & Redfering, 1983; Egland, 2004; Herek, 1987; Jackson & Hunsberger, 1999; Kerr et al., 1995; Miller, 2006).  These negative effects are explained by three main psychological theories: Cognitive Experiential Self-Theory, Heuristic Systems Model, and ingroup/outgroup biases.

The effects of religious biases in court has remained largely unexplored by psychologists and jury specialists. Several factors may be to blame for this, such as a fear of appearing impious by questioning religion’s adverse effects on rational thinking.  Without a doubt, their personal religious beliefs may cause academics and professionals to shy away from addressing its influence on rationality.  Moreover, many appear unaware of religion’s role within courtrooms; the symbols and statements that conjure up religious thought have become ingrained.

Curious about these issues, I, as a rising senior at Amherst College, devoted myself to investigating the impact of religion on juror decision-making.  While gender and race have been found time and again to influence the outcome of jury decisions, religion, I knew, would be a whole other matter; religion is far more intertwined with the areas of morality and law, making them harder to separate, and far more likely to influence another.

Many consider religion and morality to be inseparable concepts.  Some of the most public leaders in the world have had strongly religious backgrounds, such as Mother Teresa, Ghandi and Martin Luther King Jr.  Churches, synagogues and mosques around the world support social services and recreational activities, which promote acceptance and equality, and as such, many deem religion and morality to be one and the same.  As taught in Buddhism, Christianity, Judaism, and many other faiths, religion provides an ethical system that is widely viewed to benefit us all.  Because of the connections between morality and religion, religiousness is often associated with being a good person, with increased levels of honesty, trust and forgiveness (Perrin, 2000).  Furthermore, religion provides an additional set of laws by which one can base their actions and decisions.  Religious salience can affect the decision-making in several ways.  According to the Cognitive Experiential Self-Theory (CEST), religion has the power to instigate emotional, rather than rational, thinking. Rational thinking is a conscious, effortful system that functions according to a person’s established rules of logic and evidence, focusing on analysis and details.  It requires significant cognitive activity and can be, at times, quite time consuming.  Because of the substantial mental efforts and time required for rational thinking, experiential thinking provides an alternative way to quickly sift through information.  Experiential processing is an instinctual, emotionally-based process of decision-making, oriented around feelings of pleasure and pain.  It allows people to make decisions based on what feels best to them at a given moment.  Prosecutors take advantage of experiential thinking by bringing up emotional topics.  One key example is prosecutors’ use of Biblical statements, attempting to sway the jury for or against a defendant.[3] During experiential processing, jurors are more likely to rely on religious teachings and biases to help them reach a verdict than court instructions, as religion is far more instinctual than the instructions given by the judge for the first time moments ago.

Additionally, in accordance to the Heuristic Systems Model (HSM), religious beliefs act as mental shortcuts; heuristics allow an individual to process information in a cursory manner, often resulting in experiential decisions that reflect prejudices and/or biases. As shown in several studies (e.g., Miller & Bornstein, 2005; Miller & Bornstein, 2006; Giner-Sorolla et al., 2002; Kirkpatrick et al., 1992), the topic of religion often elicits heuristic thinking due to its emotional and personal relevance.  Heuristic thinking greatly hinders one’s ability to make a rational and effortful decision, compromising the validity and honesty of a potential juror.  These factors, explained by CEST and HSM, highlight the power of religion in adjudication.

Considering whether the religion of the defendant is in conflict or harmony with the juror’s own belief system adds another layer to the interaction between religion and adjudication. Studies by Van Pooijen & Lam (2007) as well as Kerr et al. (1995) suggest that social categorizations play a significant role in jury decision-making, stating that if the religion of the defendant is known to jurors, ingroup/outgroup biases may be activated.  These biases can alter the way in which jurors judge a defendant’s character and behavior, resulting in harsher or more lenient punishments depending on whether or not the defendant is of the same religious group as the juror.  These biases may cause outgroup punitiveness, similarity-leniency, or the black sheep effect.  These three theories state that individuals often punish the outgroup, favor the ingroup, and/or punish the deviant ingroup.  These theoretical tendencies are caused by personal prejudices and compromise one’s ability to judge other people and situations impartially.

While ingroup/outgroup prejudices are common, religion powerfully ignites group identities because it socializes behavior and creates a common community.  As stated by Lumsden and Wilson (1983), religion is a “powerful device by which people are absorbed into a tribe and psychically strengthened.”[4] Due to the strong bonds between those of the same religion, ingroup and outgroup biases are often triggered when the religious affiliation of the defendant is known.  Frequently, these biases are utilized when fashioning a jury.  The jury pool selection process, voir dire, provides attorneys with the opportunity to pick jurors expected to favor their side. In the past, controversies have swarmed around discrimination against jurors based on race, gender, and religious affiliation.[5] These discriminationatory actions take place due to the power and efficacy of ingroup/outgroup biases and the way in which they shape individual’s attitudes and behaviors towards others.

Considering all of these factors, my study investigated the role of perspective taking and religious symbols on jury biases and decision-making.  I did so by manipulating perspective taking and religious content.  In order to explore the impact of perspective-taking, half of the participants received instructions that specifically asked them to take the perspective of the defendant.  In order to observe the effects of religious content, participants read one of three versions of a trial, identical except for the religion of the defendant, which was either Sikh, Christian, or unidentified, acting as the control.  Religion was revealed by the defendant’s tattoo, either a Cross, Ek-Onkar, or nondescript, and what book he swore in on when he testified, either the Bible, Guru Granth Sahib, or simply his hand over his heart.  The name of the defendant also changed.  By including or excluding perspective taking instructions as well as changing the religion of a defendant within a case summary, we were able to observe changes in participants’ judgments and thought processes.  It was hypothesized that perspective taking instructions would reduce the expression of juror biases and increase rational thinking while the presence of religious symbols was expected to increase levels of juror bias and experiential thinking.

Ultimately, evidence supported the first of these hypotheses, with lowered sentences and higher rationality reported with perspective taking instructions, while mixed results were collected regarding the effect of religious symbols.  Correlations between religious symbols, experiential thinking, devotionalism, as well as religious identification shifted between the Christian and Sikh conditions.  Findings led to the conclusion that perspective taking inhibits the expression of juror biases and increases rationality while the inclusion of religious symbols dulls the effect of perspective taking by altering the ways in which participants view themselves as well as the defendant.

Results indicated that reference to the defendant’s religious tattoo as well as what the defendant swore in on was enough to alter the way in which jurors came to their respective decisions.  Additionally, I found that asking participants to take the perspective of the defendant lessened biases and increased rational thinking (also, consequently, lowering the recommended sentence).

Though these results reflected the biases I had anticipated, the strength of the data nonetheless astounded me.  If simply reading a case study was enough to influence changes in thought processes (rational versus experiential) in a participant pool of affluent, largely liberal college students, then what must the effect be in actual trials when a defendant shows up with a gold cross around his neck, or a turban, or scull cap on his head?  The results of my study clearly showed that when religion is present, jurors are less able to think through the evidence of a case with a rational mind.  All of this lead me to the question of why, then, is religion still so widely accepted in our legal structure and government and how can we change things?

Many claim that the difficulty of separating church and state lies within America’s innate ties to religion.  While our Founding Fathers stated that church and state are to remain separate, the laws and traditions of this country grew from seeds of Christian faith and moral standing. We share a public religion that Robert Bellah labels the “civil religion,” that “provide[s] a religious dimension for the whole fabric of American life (1967, p.171).  Christianity, writes William Connolly, “is already inscribed in the prediscursive dispositions and cultural instincts of the civilization” (1999).[6] This “subterranean flow” of religion, as Connolly labels it, “persists despite the disestablishment of religion” (Smith, 1997).[7] Sunday, Connolly writes, is a prime example of a common word heavily overlaid with religious connotations based on Christian traditions.  These connotations, whether we are aware of them or not, “color all judgments” we make concerning the day (Connolly, 1999).  Christianity, it seems, maintains an innate connection to United States law.

Yet just because we as a nation continue to uphold certain Christian values does not mean they must maintain a role in our courtrooms.  While respecting American Christian traditions and the difficulties in separating church and state, it has become apparent through several psychological studies (e.g., Miller & Bornstein, 2005; Giner-Sorolla et al., 2002; Howard & Redfering, 1983; Jackson & Hunsberger, 1999; Johnson, 1984; Kenworthy, 2003; Kerr et al., 1995), that allowing religion within courtrooms creates bias.  Including my own study, it has been shown that religious beliefs provoke prejudice and alter the decisions of participants.  When put in a decision-making position, the presence of religious symbols, traditional or not, puts the proper functioning of our judicial system at risk.  As such, without condemning Christianity or religious roots of the American nation, it must be understood that the presence of such religious fervor in a time of decision-making is not beneficial to the defendant or jurors.  While religion may continue to play a role in several American traditions, the presence of religion within courtrooms is problematic if we wish to achieve optimal rationality and impartially within jury rooms.

So what next?  In the article Civil Religion in America, Bellah argues that it is not one religion alone that unites Americans, but a “civil religion,” which entails “common elements of religious orientation that the great majority of Americans share” (1967, p.171).  The inauguration of the President is one example of a civil religious event. Bellah cites Dwight Eisenhower as saying, “Our government makes no sense unless it is founded in a deeply felt religious faith- and I don’t care what it is” (p.170).  This statement, Bellah points out, negates the necessary presence of one specific religion.  But according to Bellah, civil religion cannot replace traditional religion because religion supplies the awareness that the nation faces a higher judge: God.  This awareness of authority and formidable judge is essential to the functioning of a courtroom setting and maintaining a law-abiding society.  Jurors, defendants, and lawyers alike must feel the gravity of the situation and also respect and adhere to the procedures within the court.

Emile Durkheim also credits religion for maintaining social order, citing the social roots of religion in lowering acts of deviance.  According to Durkheim, religion plays an important role in legitimizing and reinforcing society’s values and norms (Durkheim, 1961).  Yet, Durkheim does not assume these collective sentiments and ideas must be “religion,” as we think of it today.  Unlike Bellah, Durkheim believes that the social root of religion is based on the concept of “collective effervescence” (1961).  Collective effervescence is the primary form of religion, comprised of collective action (a group performing an action together, such as going to church), idealization (an idea that becomes known as a revelation, such as God), and concept formation (creating a new idea, such as Heaven).  When these three things occur together, Durkheim proposes an electrical charge ignites between people that produces community and productivity.  To Durkheim, “cults” are the secondary form of religion, which includes the titles most think of as “religion”: Christianity, Hinduism, Judaism, etc.  But to Durkheim, religion can also include symbols, sports teams, bands, a concert, anything that brings people together under a common idea and excitement.  “What essential difference is there between an assembly of Christians celebrating the principal dates of the life of Christ…and a reunion of citizens commemorating the promulgation of a new moral or legal system or some great event in the national life?” writes Durkheim (1961, p.475).  Unlike the common perspective of religion, Durkheim sees the secondary forms of religion as fluid and inessential, but, no society can last without the primary form of religion, collective effervescence:  “There can be no society which does not feel the need of upholding and reaffirming at regular intervals the collective sentiments and collective ideas which make its unity and its personality” (Durkheim, 1961, p.474-5).

Therefore, according to Durkheimian theory and the importance of authority, as discussed by Bellah, I propose that Christian symbols and moral traditions within the courtroom be replaced with a secondary form of patriotism, an emphasis on citizenship, justice, and equality.  Instead of invoking religious morals, citizen responsibility and legal regulations should be at the forefront of every person’s minds.  Through this, secularism within courtrooms may be achieved.  Further, secularism can provide the same collective effervescence as religion as long as it maintains the same elements: collective action, idealization, and concept formation.  By banishing religious symbols while adding national symbols, attention would simply shift to another collective action.  The ideal of justice and the concept of a safe and law abiding community will be present.  Put together, these elements would result in a collective surge of patriotism, thus creating the same foundational social roots necessary for the stabilization of society, expressing the shared moral values of all Americans.

In order to achieve collective effervescence and social order through secular nationalism, several things must be replaced in the courtroom setting.  There should be no swearing to God, no Bible, and no religious symbols allowed on any individual within the courtroom.  The presence of the Ten Commandments or any other religiously significant phrases would not be tolerated or deemed legal within the courtroom setting (Associated Press, 2004).  Neither would prosecutorial references to the Bible or God.  Instead, the United States flag should be present, along with the U.S. Constitution and other symbols representing the nation as a whole and emphasizing one’s role as a citizen in upholding the laws that regulate social order within this country.  In doing so, the court will maintain the same authoritative air created by the current presence of religion, as suggested by Bellah.   The judge will still play as formidable a role as before, acting as the person who upholds and enacts the laws of the United States, instead of invoking God-like qualities and jurors will still feel a moral responsibility to provide a fair and just sentence.

Furthermore, Durkheim provides an argument in support of the termination of the Bible-based swearing in process: using the Bible for swearing in assumes that each defendant believes in God.  If they do not, then the act of swearing on the Bible is obsolete.  As such, the United States should replace the use of religious material within courtrooms with signs of national pride and citizenship.  By doing so, defendants will swear on their own pride and morals by covering their hearts instead of swearing by a God they may or may not believe in.  Another alternative would be swearing on the Constitution, in doing so invoking the laws and traditions of the United States of America.

The influence of what a defendant swears in on was clearly observed in this study.  In my study both the Sikh and Christian defendants used the words “so help me God”; the only difference in their oath was the holy book on which they placed their hands.  This difference alone provoked changes in perspective taking and rational thinking.  Considering this evidence, removing the Bible and creating one secular book or image on which defendants may take their oath will remove additional religious biases present within jurors.  Emphasizing justice and commitment to one’s personal morality will also reduce these biases. And, according to Durkheim, this may be achieved without compromising the court’s feeling of authority and power.

Will these and can these changes ever be made in the United States court system?  That is yet to be seen.  But recognizing the problems before us and the limitations of the current system is the first step in the right direction.

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[1] According to the Associated Press (2004), former Alabama Chief Justice Moore was “removed from office in 2003 for refusing to remove a Ten Commandments monument from the rotunda of the Alabama Judicial Building in Montgomery.”

[2] See, e.g., People v. Harlan (2003).

[3] See e.g., Sandoval v. Calderon (2000); Andrea Yates’s prosecutor told the jury, “[it] was wrong in the eyes of God and it was wrong in the eyes of the law” (Yates Found Guilty of Murdering Her Children, CNN.com, (March 13, 2002), at http://archives.cnn.com/2002/LAW/03/13/yates.trial/index.html.)

[4] As cited in Spilka et al. (2003).

[5] Currently it is illegal, under the Supreme Court ruling of Batson v. Kentucky, to discriminate against jurors based on gender and race.  Yet, whether or not Batson applies to religious discrimination is up to debate (Egland, 2004); See, U.S. Const. amend. XIV, § 1; Batson v. Kentucky, 476 E.S. 79, 89 (1986).  In relation, in 2005 it was revealed that John Quatman, a prosecutor from San Jose, California, conspired with a judge to keep Jewish jurors off death penalty cases because he believed that Jews would never vote for the death penalty (CNN.com, 2005, as cited in Miller & Hayward, 2007).  It was ruled that excluding jurors based on religion is illegal, and the trial was postponed.

[6] According to Connolly, there is a “subterranean flow” of religion running through our culture, constantly mixing private religion and the public sector.

[7] Smith labels this the “defacto disestablishment.”