The Ninth Circuit only publishes one opinion today, and it reverses the dismissal of a claim by a Jehovah's Witness that requiring her to take a sworn oath as a condition of state employment violates her right to free exercise of religion as well as Title VII and the California Fair Employment and Housing Act.
Judge Friedland's opinion concisely describes the relevant dispute: "The California Constitution requires all public employees, except those 'as may be by law exempted,' to swear or affirm to 'support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic' and to 'bear true faith and allegiance' to those constitutions. Cal. Const. art. XX, § 3. Bolden-Hardge, a devout Jehovah’s Witness, believes that her faith precludes her from 'swearing primary allegiance to any human government' over 'the Kingdom of God' or pledging to engage in military activity. She objects to California’s loyalty oath because she believes that it would require her to pledge primary allegiance to the federal and state governments and to affirm her willingness to take up arms to defend them, both of which she says would violate her religious beliefs."
Bolden-Hardge offered a substitute oath. She was happy to say: "I, Brianna Bolden-Hardge, vow to uphold the Constitutions of the United States and of the State of California while working in my role as an employee of the State Controller’s Office. I will be honest and fair in my dealings and neither dishonor the Office by word nor deed. By signing this oath, I understand that I shall not be required to bear arms, engage in violence, nor to participate in political or military affairs. Additionally, I understand that I am not giving up my right to freely exercise my religion, nor am I denouncing my religion by accepting this position."
California wasn't cool with that. So Bolden-Hardge didn't get the job. Then she sues, and California defends the suit on the grounds that the oath requirement is just fine, and that it's okay to make people say that when and if their religious requirements conflict with their employment requirements, the latter rules.
I can see the arguments on both sides. Ultimately the Ninth Circuit says that it's not okay to dismiss the thing at the pleading stage, and that seems kinda right to me. We'll have to figure out of the facts.
Nonetheless, here's my take:
The oath requirement comes from the California Constitution, which requires most state employees -- and there are a TON of them -- to take that oath. Here's what Section 3 of Article XX says:
"Members of the Legislature, and all public officers and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation . . ."
The following is my dominant, nonlegal reaction:
Seriously? Come on. Who cares? Why put that thing in there?
It's not like an "oath" is really going to change people's behavior, or "screen out" bad people. It doesn't really screen out anyone, and to the degree it does, its only effect is on people with conscience like Ms. Bolden-Hardge. The thing gets passed in the 1950s or whatever when there's McCarthyism and we're all super paranoid about communism taking over the American government and the like. [POSTSCRIPT - That might actually have been the amendment, not the original oath. Still. It was back in the old days, for sure.] It doesn't work -- or really accomplish anything, actually. Just delete the thing. It's stupid.
Do I really care if people like the President are required to take an oath? Not really. It's symbolic, and at some high level, maybe there's a role for that. But every state employee?! Seriously? Do you really feel better knowing that your communications professor at UC Berkeley was willing to sign a stupid oath as a condition of teaching? Or, as here, someone working in the bowels of the Comptroller's Office?
Courts can't just totally ignore a state constitutional command, of course. My dominant reaction to this case was nonetheless that it's just silly that we have disputes like this over an oath that serves utterly no purpose in the first place. All this money and attorney's fees wasted by the state on something that accomplishes essentially -- probably, literally -- nothing.
I can't believe we don't have better things to do with our time.
Anyway, the case gets remanded back to Judge Mendez. We'll see how it goes.
