BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 115 S
Senator Lowenthal B
As Amended March 24, 2009
Hearing Date: March 31, 2009 1
Government Code 1
GMO:jd 5
SUBJECT
Public Employees: Loyalty Oath
DESCRIPTION
This bill would require that a public employee or employment
applicant be permitted to take and sign a modified oath of
office based on the employee's or applicant's moral, ethical, or
religious beliefs that conflict with his or her ability to take
such oath without mental reservation, so long as he or she is
willing and able to uphold the Constitutions of the United
States and California. This would not apply to a public
official who is elected or who serves at the pleasure of an
elected official.
The bill would provide the language for such a modified oath of
office.
BACKGROUND
SB 1322 (Lowenthal, 2008) contained provisions of SB 115 as well
as sought to repeal a number of McCarthy-era laws relating to
anti-communism. SB 1322 was vetoed, but the Governor's message
referred only to the repeal of the anti-communism statutes, not
to the loyalty oath provisions of the bill. SB 115 addresses
only the loyalty oath applicable to public employees.
Section 3 of Article XX of the California Constitution requires
that members of the Legislature and all public officers and
employees take a prescribed loyalty oath but permits the
Legislature to make exceptions from the oath for "inferior
officers and employees." (The entire oath, minus the part found
(more)
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unconstitutional as an abridgment of the First Amendment in
Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, is found in
Comment 2 of this analysis.)
Members of some religions, such as Jehovah's Witnesses, are
precluded by their faith from taking oaths. Others, such as
Quakers, are committed by faith to pacifism and interpret the
phrase "defend [the constitution] against all enemies, foreign
and domestic" as requiring them to participate in war or
violence.
In 2008, two Quakers were denied employment by the California
State University system for refusing to sign or altering the
loyalty oath because it conflicted with their religious beliefs.
Only after lawsuits were filed and the CSU suffered significant
public criticism were those instructors ultimately hired.
CHANGES TO EXISTING LAW
Existing law , Section 3 of Article XX of the California
Constitution requires that Members of the Legislature and all
public officers and employees take and subscribe the oath that
is set forth in its provisions and defines public officer and
employee for these purposes. This Section permits the
Legislature to make exceptions from the oath requirement for
"inferior officers and employees."
Existing case law invalidated the second paragraph of the oath
set forth in Section 3 of Article XX of the California
Constitution as an unconstitutional violation of the rights
guaranteed by the First Amendment of the United States
Constitution. (Vogel v. County of Los Angeles (1967) 68 Cal.2d
18.)
This bill would establish an alternative oath for applicants for
public employment and for public employees who are precluded by
their moral, ethical, or religious beliefs from taking and
subscribing the loyalty oath specified in Section 3 of Article
XX of the California Constitution from taking such oaths or from
the ability to take such oaths without mental reservation.
COMMENT
1. Stated need for the bill
The author writes:
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SB 1322 creates a religious exemption to the loyalty
oath, allowing persons, other than elected or appointed
officials, whose moral, ethical, or religious beliefs
conflict with the current oath to sign an alternative
statement affirming that the person is willing to uphold
the constitution and all laws and to faithfully discharge
the duties of employment?
We should not be asking people to violate their faith in
order to work for the state of California as long as they
will uphold the laws of this state and fulfill the
obligations of their job.
2. The loyalty oath
Section 3, Article XX contains the loyalty oath. It begins:
"I, ______, do solemnly swear (or affirm) that I will
support and defend the Constitution of the United States
and the Constitution of the State of California against
all enemies, foreign and domestic; that I will bear true
faith and allegiance to the Constitution of the United
States and the State of California; that I take this
obligation freely, without mental reservation or purpose
of evasion; and that I will well and faithfully discharge
the duties upon which I am about to enter."
It should be noted that the second paragraph of this oath as
stated in Section 3 Article XX was struck down as violative of
the First Amendment right of association in the case of Vogel v.
County of Los Angeles, supra. However, that second paragraph
(pertaining to membership in organizations "advocating the
overthrow of the state and federal governments" (e.g.,
membership in the communist party)) was found to be severable
from the first paragraph affirming loyalty and defense of the
Constitution, and thus unaffected by Vogel. (Smith v. County
Engineer of San Diego County (App. 4 Dist. 1968) 266 Cal.App.2d
645.) All public officials required to take the oath of office
today take and sign only the oath as described above.
SB 115 would provide an alternative loyalty oath to those whose
moral, ethical or religious beliefs conflict with the above oath
such that they could not make the oath or sign it without mental
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reservation. This alternative oath would state:
"I, _____, do solemnly affirm that I will uphold the
constitution of the United States and the Constitution
and all other laws of the State of California; that I
take this obligation freely, without any mental
reservation or purpose of evasion; and that I will well
and faithfully discharge the duties upon which I am about
to enter."
Supporters of SB 115 believe that "as long as an employee or
applicant seeking public employment is able to fully carry out
his or her duties of employment, they should not be forced to
take the oath of office if their moral, ethical, or religious
beliefs conflict with their ability to take the oath." (AFSCME
letter dated March 20, 2009.) Another supporter, California
Church Impact, representing "1.5 million members in the
mainstream, progressive Protestant communities of faith," is
more explicit:
"?For us, individual conscience is a powerful aspect of both
faith and democracy. For that reason, we strongly support SB
115 that provides a waiver from the state loyalty oaths for
those people for whom this is a violation of their moral,
ethical, and religious beliefs.
It is appalling?that we even demand loyalty oaths in this day
and age. However, given our obsession with terrorism and
insistence that we "prove" our loyalty to California and the
Constitution, it nevertheless infringes on many people's most
profound moral principles.
Loyalty is not dependent on a piece of paper. Upstanding
citizens and state employees are manifest by what they do and
believe, not by what they do or do not sign. We strongly
support Sen. Lowenthal's important bill to restore individual
belief and conscience to this hiring process. It is
unspeakable that jobs are lost over something so fundamental
as human conscience."
The Friends Committee on Legislation of California states that
"[w]hile it is obvious that the loyalty oath requirement will
not deter those who would engage in terrorism or other violent
activities, those who are impacted are people whose religious or
personal convictions are in conflict with the loyalty oath
requirements. Last year, two university instructors, Marianne
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Kearney-Brown and Wendy Gonaver, both members of the Religious
Society of Friends, were terminated by the California State
University because they could not in good conscience adhere to
their oath without clarifying that they could only defend the
Constitution nonviolently?These are people who uphold the laws
of the land and pose no threat to society. The choices they
face are to set aside their religious convictions and sign the
oath - which trivializes both - or they may refuse to sign the
oath and be denied employment. Though Kearny-Brown and Gonaver
were eventually reinstated, it was only after considerable legal
wrangling and a lot of negative publicity for the CSU."
The Senate Judiciary Committee has received close to 100 letters
from individuals in support of SB 115.
3. Statement expressing conflict with moral, ethical, or
religious beliefs required
A person who opts to take and sign the alternative oath
discussed in Comment 2 would be required, under SB 115, to sign
a separate statement regarding why he or she declines to take
the oath currently prescribed for public officials. The
statement would substantially state that he or she declines to
take and subscribe to the oath required by Section 3 of Article
XX of the California Constitution based on moral, ethical, or
religious beliefs that conflict with his or her ability to take
and subscribe to the oath without mental reservation.
4. Alternative oath would not apply to elected public official
or appointee of elected official
This bill would not affect the loyalty oath required of elected
officials or their appointees. In other words, these officials
would be required, under the constitutional mandate of Section 3
of Article XX, to take and subscribe to the oath exactly as
stated in that provision.
5. Opponents' concerns
Some public employers oppose the provision of an alternative
oath to employees or applicants based upon moral, ethical, or
religious beliefs in conflict with that person's ability to take
and subscribe the oath without mental reservation.
The City of Palm Desert "seeks at all times to accommodate
potential employees without regard to race, religion, sex,
country of origin, personal beliefs, etc. However, in order to
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be consistent, public employers should have the freedom to
require all employees to subscribe to the same manner in taking
the oath of office for employment. Therefore, the City of Palm
Desert must respectfully oppose SB 115."
Providing an employee or applicant for employment with the
alternative oaths of office (the current loyalty oath and that
proposed by SB 115) would not violate Vogel, Smith, or any other
statute or case law that staff is aware of, and employers, under
current law and under this bill, would not be required to do
more or less than is required by Section 3, Article XX of the
Constitution. The alternative oath is being added to the
Government Code, which is well within the power of the
Legislature to do, for "inferior officers and employees."
Support: American Civil Liberties Union; American Federation of
State, County and Municipal Employees, AFL-CIO (AFSCME);
California Church Impact; Friends Committee on Legislation of
California; 100 plus individuals
Opposition : City of Palm Desert (letter dated prior to amendment
dated March 24, 2009)
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : SB 1322 (Lowenthal, 2008). (See
Background.)
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