BILL ANALYSIS
SB 115
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Date of Hearing: July 8, 2009
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Kevin De Leon, Chair
SB 115 (Lowenthal) - As Amended: March 24, 2009
Policy Committee: JudiciaryVote:7-3
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill permits a public employee or employment applicant to
sign a modified oath of office, as specified, based on the
employee's or applicant's moral, ethical, or religious beliefs
that conflict with their ability to take such oath without
mental reservation, so long as they are willing and able to
uphold the Constitutions of the United States and California.
The above option would not be available to a public officer,
employee or applicant for public employment who is elected or
who serves at the pleasure of an elected official.
FISCAL EFFECT
Minor absorbable costs to state agencies and minor
nonreimbursable costs to local government entities to provide
the modified oath of office as an option to employees and
applicants.
COMMENTS
1)Background . Section 3 of Article XX of the state Constitution
contains the loyalty oath, the first paragraph of 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;
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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." All persons
required to take the state loyalty oath today take and
subscribe to only the first paragraph of the oath, as
described above. Existing California case law further
prohibits the prospective employee from making any
alterations, interlineations, or strikeouts to the oath.
2)Purpose . This bill permits public employees and applicants
for public employment to take and sign a modified loyalty
oath, as follows:
"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."
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. This is an
attempt to alleviate the concerns of individuals who are
committed by faith to pacifism, such as Quakers, who interpret
those two phrases as requiring them to participate in war or
violence in order to defend the Constitutions and state laws.
3)Prior Legislation : SB 1322 (Lowenthal) of 2008, which 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, was vetoed. The governor stated that 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
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for communist activities." Notably, this message indicated
that the veto was based on the proposed repeal of
anti-communism statutes, but not specifically on the loyalty
oath provisions. AB 115 addresses only the state loyalty oath
applicable to public employees and applicants for employment.
Analysis Prepared by : Chuck Nicol / APPR. / (916) 319-2081