BILL ANALYSIS
SB 115
Page 1
SENATE THIRD READING
SB 115 (Alan Lowenthal)
As Amended March 24, 2009
Majority vote
SENATE VOTE :21-11
JUDICIARY 7-3 APPROPRIATIONS 10-5
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|Ayes:|Feuer, Brownley, Evans, |Ayes:|De Leon, Ammiano, |
| |Jones, Krekorian, Lieu, | |Charles Calderon, Coto, |
| |Monning | |Davis, Fuentes, Hall, |
| | | |John A. Perez, Skinner, |
| | | |Torlakson |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Tran, Knight, Silva |Nays:|Nielsen, Duvall, Harkey, |
| | | |Miller, Audra Strickland |
| | | | |
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SUMMARY : Seeks to establish an alternative oath for public
employees and applicants for public employment who are precluded
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.
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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.
FISCAL EFFECT : According to the Assembly Appropriations
analysis, 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 : 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.
Section 3 of Article XX of the state 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
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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.
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
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
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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.
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
interpret those two phrases as requiring them to participate in
war or violence in order to defend the Constitutions and state
laws.
Several groups have written to the Judiciary Committee in
support of this legislation, including the American Civil
Liberties Union (ACLU, American Federation of State, County and
Municipal Employees (AFSCME), and Friends Committee on
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Legislation. Their essential position is that as long as an
employee or applicant seeking public employment is able to fully
carry out his or her duties of employment, that person should
not be forced to take the oath of office if his or her moral,
ethical, or religious beliefs conflict with his or her ability
to take the oath, as specified. These groups contend that the
alternative oath specified by this bill is a workable solution
that both accommodates an employee's religious beliefs and
affirms the employee's commitment to uphold the Constitutions
and state laws.
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
FN: 0001821