Majority Upholds Witness' Religious Objection to Raising Hand To Be Sworn In

In a 2-1 decision, the Michigan Court of Appeals has upheld the right of a plaintiff in a lawsuit to refuse for religious reasons to raise her right hand when being sworn in at a deposition and at a subsequent hearing. In Donkers v. Kovach, (MI Ct. App., Dec. 18, 2007), the majority opinion held that while raising one's right hand is required by Michigan statue when an oath is administered, the statute does not require the same conduct when, as here, a witness is administered an affirmation instead of an oath. Judge Markey dissenting argued that the statutory provision permitting an affirmation still requires raising of the right hand. He went on to hold that this requirement violates neither the First Amendment's religion clauses nor parallel provisions in the Michigan constitution. She concluded that the requirement is secular in origin and fosters a secular purpose, and that it is a neutral law of general application. Because plaintiff voluntarily chose to bring suit in a Michigan court, she must, Judge Markey ruled, "abide by Michigan's laws and court rules."