March 5th, 2008

camo at halloween

Loyalty oaths [with addendum]

Are an abomination.

Ok, just so we got that out of the way. My problem with them is they are a tool of oppressive conformity; the loyal will (by and large) swear them without thinking, and the truly disloyal will swear them falsely (I don't even want to get into the assumption, implicit in oaths that fear of some outside power will make people refuse to lie if they are disloyal; that's a whole 'nother can o' worms).

California has one. All public employees "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." It's right there in the constitution.

It reads a lot like the oath of enlistment.

"I, ______, do solemnly swear (or affirm) that I will support
and defend the Constitution of the United States and the Consti-
tution 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.

"And I do further swear (or affirm) that I do not advocate, nor
am I a member of any party or organization, political or other-
wise, that now advocates the overthrow of the Government of the
United States or of the State of California by force or violence

or other unlawful means; that within the five years immediately
preceding the taking of this oath (or affirmation) I have not
been a member of any party or organization, political or other-
wise, that advocated the overthrow of the Government of the
United States or of the State of California by force or violence

or other unlawful means except as follows:
________________________________________________________________

(If no affiliations, write in the words "No Exceptions")
and that during such time as I hold the office of ______________

________________________________ I will not advocate nor become
(name of office)
a member of any party or organization, political or otherwise,
that advocates the overthrow of the Government of the United
States or of the State of California by force or violence or
other unlawful means."

And no other oath, declaration, or test, shall be required as a
qualification for any public office or employment.


All employees of the California State University, from the loftiest chancellor; to the grubbiest gardener have to swear this out.

And one of them just got fired for saying she wouldn't use violence in that "defense" aspect of her, "true faith and allegience."

Marianne Kearney-Brown, is a grad student (and a Quaker), she's got a part-time job teaching remedial math to undergrads, as she pursues a masters, so she can teach math to struggling kids.

Her failing is that she (unlike the university) takes the oath seriously, she told the San Jose Mercury News

"I just couldn't sign it without any mental reservation," she said. "I believe in the Constitution and what it stands for, but in a nonviolent way. If I signed it, then it wouldn't be true and I'd be perjuring myself... People shouldn't treat these things as a meaningless formality."

So she crossed out swear, and circled affirm and added and asterisk to, "defend." At the bottom she footnoted the asterisk with, "As long as it doesn't require violence."

For which she was called in to resign. That time she merely put, "non-violently" in front of defend, for which she was fired.

The state's attorney general (Jerry Brown, a known Left Wing Liberal type) says the college had no choice,"Attorney General Jerry Brown, "Ms. Kearney-Brown's attempt to modify the original and valid language of the oath appears to have been made in good faith and in accordance with her Quaker beliefs," the letter said. "Nevertheless, the courts have refused to allow changes or qualifications to be made to the oath, regardless of good intentions.*" though his support is strange, in 1968 a state employee amended his oath with a phrase swearing, as well, "supreme allegiance to the Lord Jesus Christ Whom Almighty God has appointed ruler of nations, and expressing my dissent from the failure of the Constitution to recognize Christ and acknowledge the Divine institution of civil government." The California Courts decided in Smith v. County Engineer of San Diego County, 266 Cal.App.2d 645, 72 Cal.Rptr. 501(1968), (which I can't find online) that such an ammendment to the oath wasn't acceptable (there is a similar complaint being pushed, in Calif. by a man who passed the bar, but won't swear the oath unless it 1: can't be affirmed, and 2: explicitly says much the same, Christian Test Oaths It's a humdinger, esp. note his use of Theocracy {all thinking persons are theocrats, the only question is what god they put first, Secular Humanists say Man is God}. His definition of pacifist is also amazing, but I digress).

But the US Supreme Court, in Cole v. Richardson, 405 U.S. 676 (1972) made a distinction about what oaths were acceptable to impose on gov't employees, "(c) The "oppose the overthrow" clause was not designed to require specific action to be taken in some hypothetical or actual situation but was to assure that those in positions of public trust were willing to commit themselves to live by the constitutional processes of our government. Pp. 683-685.

So on that test, her amendment isn't substantive, and is in keeping with the allowable terms for such an oath.

In the elaboration Chief Justice Burger, writing for the court:

A review of the oath cases in this Court will put the instant oath into context. We have made clear that neither federal nor state government may condition employment on taking oaths that impinge on rights guaranteed by the First and Fourteenth Amendments respectively,...

the purpose leading the Framers of our Constitution to include the two explicit constitutional oaths, was not to create specific responsibilities but to assure that those in positions of public trust were willing to commit themselves to live by the constitutional processes of our system, as MR. JUSTICE MARSHALL suggested in Wadmond, 401 U.S., at 192 . Here the second clause does not require specific action in some hypothetical or actual situation.
[emphasis added]...

The purpose of the oath is clear on its face. We cannot presume that the Massachusetts Legislature intended by its use of such general terms as "uphold," "defend," and "oppose" to impose obligations of specific, positive action on oath takers. Any such construction would [405 U.S. 676, 685] raise serious questions whether the oath was so vague as to amount to a denial of due process. Connally v. General Construction Co., 269 U.S. 385 (1926); Cramp v. Board of Public Instruction, 368 U.S., at 287 .

Again, her amendment is completely in keeping with that decision. She was excercising her 1st Amendment rights to the free excercise of her religion, and since an acceptable oath can't compel..., specific action in some hypothetical or actual situation," her statement that she would make her defenses non-violent is also non-affective of the requirements of the oath.

But the State (in the office of the California State University) doesn't really care about the sincerity the person taking the oath, merely the form, as the Cal State East Bay Attorney said,“It’s an unfortunate situation. If she’d just signed the oath, the campus would have been more than willing to continue her employment.”



hit counter

*It seems that the UC system, has a standard by which it tests exceptional phrasing to the oath Resist the State Oath has details, so either the UC is wrong, or the AG is. I know where I'm putting my money.