Chapter § 2.5

• Jurisdiction: Oregon

§ 2.5 ARTICLE I, SECTION 6: NO RELIGIOUS TEST FOR WITNESSES AND JURORS

Article I, section 6, of the Oregon Constitution provides that "[n]o person shall be rendered incompetent as a witness, or juror in consequences of his opinions on matters of religeon [sic]; nor be questioned in any Court of Justice touching his religeous [sic] belief to affect the weight of his testimony."

This section was derived from Article I, section 7, of the Indiana Constitution, which applied only to witnesses. The framers of the Oregon Constitution added the reference to jurors, but the Oregon Supreme Court has effectively read that addition out of the Constitution. See § 2.5-2 (jurors).

§ 2.5-1 Witnesses

Application of Article I, section 6, of the Oregon Constitution to witnesses gave rise to the earliest pronouncement by the Oregon Supreme Court on the issue of religious liberty. In State v. Ah Lee, 8 Or 214 (1880), the defendant was convicted of murder. On appeal, he contended that the trial court erred in admitting dying declarations of the decedent, which identified defendant as his assailant, on the ground "that as the deceased was shown to be a Chinaman, it must be presumed that he . . . had the heathenish religion of his race, and that there was no evidence . . . that he had any fear of future punishment in another world for false dying declarations made in this." Ah Lee, 8 Or at 218. The supreme court noted that "[u]nder the common law, one who does not believe in the existence of a Supreme Being who will punish false swearing in a future world, is incompetent to testify," but held that the rule had been abrogated by Article I, section 6, and that the dying declarations were therefore admissible. Ah Lee, 8 Or at 218-19.

The court applied a similarly literal interpretation of Article I, section 6, in State v. Estabrook, 162 Or 476, 91 P2d 838 (1939). The defendant was convicted of using explosives to damage the property of another. He called a number of character witnesses at trial to testify to his reputation as a peaceful citizen, and the district attorney was permitted to cross-examine one of them regarding her Christian Science beliefs. Estabrook, 162 Or at 497-500. The supreme court held that this violated Article I, section 6, and reversed the conviction. Estabrook, 162 Or at 500-06. See also State v. Duncan, 131 Or App 1, 4-5, 883 P2d 913 (1994), rev den, 320 Or 508 (1995) ("general questioning about a witness' belief in God" violates Article I, section 6).

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