BILL ANALYSIS
SB 115
Page 1
Date of Hearing: June 23, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 115 (Lowenthal) - As Amended: March 24, 2009
SENATE VOTE : 21-11
SUBJECT : PUBLIC EMPLOYMENT
KEY ISSUE : SHOULD A PUBLIC EMPLOYEE OR APPLICANT SEEKING PUBLIC
EMPLOYMENT WHOSE RELIGIOUS CONVICTIONS CONFLICT WITH THE STATE'S
LOYALTY OATH BE ALLOWED TO TAKE AND SUBSCRIBE TO AN ALTERNATIVE
STATEMENT, AS SPECIFIED, TO AFFIRM THAT HE OR SHE WILL UPHOLD
THE CONSTITUTION AND OBEY ALL LAWS OF THE STATE AND FAITHFULLY
DISCHARGE THE DUTIES OF EMPLOYMENT?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill seeks to permit public employees and applicants for
public employment to take and sign a modified loyalty oath when
that person's moral, ethical, or religious beliefs conflict with
his or her ability to take and subscribe to, without mental
reservation, the state loyalty oath set forth in Section 3 of
Article XX of the California Constitution. Under the modified
loyalty oath specified by this bill, these public employees and
applicants must still affirm that they will uphold the U.S.
Constitution, California's Constitution and laws, and will
faithfully discharge the duties of employment. The option to
take the modified loyalty oath, however, is not available to any
public officer, employee, or applicant for public employment who
is elected or who serves at the pleasure of an elected official.
Supporters contend that as long as public employees or
applicants are able to fully carry out the duties of employment,
they should not be forced to take the loyalty oath if their
moral, ethical, or religious beliefs conflict with their ability
to take and subscribe to the oath. At least one public employer
opposes the bill because it believes the bill denies the
employer the freedom to require the same oath to all prospective
employees in a consistent manner of application.
SUMMARY : Seeks to establish an alternative oath for public
employees and applicants for public employment who are precluded
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by their moral, ethical, or religious beliefs from taking and
subscribing to the loyalty oath specified by Section 3 of
Article XX of the California Constitution ("the state loyalty
oath.") Specifically, this bill :
1)Makes legislative findings that some well-qualified applicants
for public employment who are loyal citizens are precluded by
their religious beliefs from taking oaths, and therefore it is
necessary to create an appropriate exemption for these persons
based on the fundamental value of freedom of religion.
2)Permits a public employee or applicant seeking public
employment to decline to take and subscribe the oath required
by 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, provided that he or she is otherwise willing and
able to uphold the U.S. Constitution, California's
Constitution and laws, and to complete the duties of
employment.
3)Requires a person who meets the conditions for exemption from
taking the state loyalty oath to sign a statement that he or
she declines to take and subscribe to the oath specifically
for the reasons provided by law justifying exemption, and also
requires the person to instead take and subscribe to an
alternative statement, as specified.
4)Provides that the option to decline to take and subscribe to
the state loyalty oath is not available to a public officer,
employee, or applicant for public employment who is elected or
who serves at the pleasure of an elected official.
EXISTING LAW :
1)Requires that Members of the Legislature and all public
officers and employees, as defined, to take and subscribe to
the oath set forth in Section 3 of Article XX of the
California Constitution, with the exception of inferior
officers and employees specifically exempted from this
requirement by act of the Legislature. (Section 3 of Article
XX of the California Constitution; Government Code Section
1360.)
2)Does not require a person to take and subscribe to the second
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paragraph of the oath set forth in Article XX of the
California Constitution because this paragraph has been
invalidated by the California Supreme Court as an
unconstitutional violation of First Amendment rights under the
U.S. Constitution. (Vogel v. County of Los Angeles (1967) 68
Cal.2d 18.)
3)Requires that every person who is employed in a permanent
position in the state civil service where the employment
continues for 30 days or more, and who has not previously
taken and subscribed the state loyalty oath, must take and
subscribe to the state loyalty oath within the first 30 days
of employment. (Government Code Section 18151.)
4)Provides that any person who is appointed to a state position
not in the state civil service and who fails to take the state
loyalty oath within the time provided forfeits his or her
right to the position, which shall then be considered vacant.
(Government Code Section 18154.)
5)Provides that the failure of any person who is appointed to a
permanent position in the state civil service to take and
subscribe the state loyalty oath within the time provided is a
cause for dismissal by the State Personnel Board. (Government
Code Section 18155.)
COMMENTS : This bill seeks to permit public employees and
applicants for public employment to take and sign a modified
loyalty oath when that person's moral, ethical, or religious
beliefs conflict with his or her ability to take and subscribe,
without mental reservation, the state loyalty oath set forth in
Section 3 of Article XX of the California Constitution.
Under the modified loyalty oath specified by this bill, these
public employees and applicants must still affirm that they will
uphold the U.S. Constitution, California's Constitution and
laws, and will faithfully discharge the duties of employment.
The option to take the modified loyalty oath, however, is not
available to any public officer, employee, or applicant for
public employment who is elected or who serves at the pleasure
of an elected official. These individuals must still take and
subscribe the loyalty oath set forth in Article XX of the state
Constitution.
State Loyalty Oath : Section 3 of Article XX of the state
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Constitution contains the loyalty oath, which reads:
"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 Constitution 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."
The second paragraph of the oath, pertaining to membership in
organizations "advocating the overthrow of the state and federal
governments" was invalidated in 1967 by the California Supreme
Court "because it bars persons from public employment for a type
of association that may not be proscribed consistently with
First Amendment rights." (Vogel v. County of Los Angeles (1967)
68 Cal.2d 18, 22.) That paragraph was incorporated into the
constitutional loyalty oath in 1952, during the McCarthy era, to
target members of the Communist party in public jobs.
In Smith v. County Engineer of San Diego County (1968), 266
Cal.App.2d 645, the Court of Appeal held that the second
paragraph of the oath is severable from the first paragraph
affirming loyalty and defense of the Constitutions, and thus
unaffected by Vogel. Therefore, all persons required to take
the state loyalty oath today take and subscribe to only the
first paragraph of the oath, as described above.
Prospective Employees May Not Edit or Otherwise Modify the Oath
on Their Own . Existing California case law prohibits the
prospective employee from making any alterations,
interlineations, or strikeouts to the oath. (Smith, 266
Cal.App.2d 645.) In Smith, the court held that the public
employer "properly refused to accept the oath encumbered and
compromised by appellant's injection of an unauthorized
potential qualification of its meaning and clarity." (266
Cal.App.2d at 656.)
Under Smith, the inability of a prospective employee to modify
the oath can result in the withdrawal of an employment offer or
even termination of public employment, as was illustrated in two
cases involving the California State University system last
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year.
Wendy Gonaver, a Quaker and lifelong pacifist, was hired to
teach at Cal-State Fullerton, but was abruptly terminated when
she objected to and did not sign the state loyalty oath swearing
to "defend" the U.S. and California constitutions "against all
enemies, foreign and domestic." Gonaver offered to sign the
pledge if she could attach a brief statement expressing her
views, but the university rejected her statement and insisted
that she sign the oath if she wanted the job. ("Teacher Fired
for Refusing to Sign Loyalty Oath," by Richard Paddock, Los
Angeles Times , May 2, 2008.)
In February 2008, Marianne Kearney-Brown, also a Quaker and a
math instructor, was fired by Cal State East Bay because the
university would not allow her to alter the written pledge to
add the word "nonviolently" before the word "defend." (Id.)
Although the instructors in both cases reached settlement with
the university to attach an explanatory statement that does not
qualify or undermine the oath to the state's satisfaction, these
examples illustrate, supporters note, the utility of providing
an alternative loyalty oath for those persons whose moral or
religious beliefs conflict with the existing state loyalty oath
such that they can not take or subscribe it without mental
reservation.
Proposed Alternative Oath : The language of the modified oath
proposed by this bill reads:
"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."
Notably, the alternative oath replaces the language that the
oathtaker will "support and defend" the U.S. and California
Constitutions and all other state laws "against all enemies,
foreign and domestic" with language that the person will simply
"uphold" those constitutions and laws. These modifications
appear sufficient to alleviate the concerns of individuals who
are committed by faith to pacifism, such as Quakers, who
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interpret those two phrases as requiring them to participate in
war or violence in order to defend the Constitutions and state
laws.
ARGUMENTS IN SUPPORT : Several groups have written to the
Committee in support of this legislation. The American Civil
Liberties Union (ACLU) believes the bill is needed because
"applicants for public employment who are well-qualified and
loyal citizens of this state continue to be denied employment
because their religious convictions preclude them from signing
the oath," citing the examples of the California State
University instructors. The ACLU contends that this bill
remedies the problem by creating an alternative oath that both
accommodates an employee's religious beliefs and affirms the
employee's commitment to uphold the Constitutions and state
laws.
The American Federation of State, County and Municipal Employees
(AFSCME) supports the bill because it believes 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."
The Friends Committee on Legislation (FCL), a non-profit action
group established by Quakers in 1952, supports the bill,
stating:
While 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. . . 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.
People of faith and people with deep rooted personal
and moral convictions make outstanding contributions
to public service. They should not be denied
employment on account of their religious or personal
convictions.
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Committee counsel have reviewed the contents of a file, compiled
by the Friends Committee on Legislation, containing
approximately 155 letters written by individuals in support of
this bill.
ARGUMENTS IN OPPOSITION : The City of Palm Desert opposes the
provision of an alternative oath and the exemption of some
public employees from the constitutional requirement that all
public employees take and subscribe the same loyalty oath. The
City states that it "seeks at all times to accommodate potential
employees without regard to race, religion, sex, country of
origin, personal beliefs, etc. However, in order to 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."
Prior Related Legislation : SB 1322 (Lowenthal) of 2008 sought
to repeal a number of McCarthy-era laws relating to
anti-communism, and, among other things, authorized an
alternative loyalty oath with language identical to the one in
this bill. SB 1322 was vetoed by the Governor because he saw
"no compelling reason to change the law that maintains our
responsibility to ensure that public resources are not used for
purposes of overthrowing the U.S. or state government, or for
communist activities." Notably, the Governor's veto message
indicated that his veto was based on the proposed repeal of
anti-communism statutes, but not specifically on the loyalty
oath provisions. By contrast, this bill addresses only the
state loyalty oath applicable to public employees and applicants
for employment.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union (ACLU)
American Federation of State, County and Municipal Employees
(AFSCME)
California Church IMPACT
Church State Council
Friends Committee on Legislation (FCL)
Approximately 155 letters from individuals
Opposition
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City of Palm Desert
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334