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March 10, 2008


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Orin Kerr

Isn't there a pretty big difference between a requirement of a "loyalty oath" for a U.S. Citizen generally and an oath to defend the Constitution for a government employee? A government employee agrees to be an agent of the state; citizens do not.


1. Loyalty oaths are stupid. But so is getting all upset about them. They must have some import and impact in order to prompt the above response. As Stone implied, though, they don't appear to create any new obligations or duties. Why, then, such a heated objection to forcing people to utter some platitudes? Or, if the oath is not a silly platitude, then why is it all that unreasonable for the State of California to ask its employees to protect and defend its constitution? Maybe it's not all that different than a private-sector employee agreeing to act within not only the bounds of his employment agreement but also within the bounds of the employer's organizational documents. (I think I could humble myself to swear to protect and defend, say, Microsoft's corporate charter -- if they paid me.)

2. I assume Stone objects to the requirement that California legislators and executives be sworn to uphold and enforce the California and US Constitutions (as I assume they are required to do). If, instead, he thinks that that requirement is fine (or maybe even desirable), why must a legislator swear to uphold and defend the constitutions, but other public employees not? In some ways requiring the oath of legislators but not of highway workers is patronizing to the latter. "We would never ask you laborers to do something so profound."

3. Lastly, though I don't know about the genesis of loyalty oaths in general (but I suspect they originated in the US prior to the 1950s), I do know that the first administration to scaremonger about communism was a Democratic one. The raids ordered by Woodrow Wilson's attorney general, Alexander "The Fighting Quaker" Palmer (seriously), were far more excessive than anything McCarthy ever did.


As a former government employee who took a loyalty oath to the state of NY, the city of NY, and the United States government, I see no problem with this.

private employers are allowed to conduct background checks, mandate workplace dress codes/hair styles, and impose other burdens on their workers. if workers do not accept these burdens, then they can decline employment and look for work elsewhere.

I am a civil libertarian, but I think the mainstream of civil libertarians in the legal academy and the political world need to get off their high horses. Loyalty oaths impinge on the lives of vanishingly few people. Why not use your influence to draw attention to issues that affect every man, woman, and child in the U.S., like data mining and the impact of technology on privacy.

Professor Stone, get out of the 1950s and into the 21st century.


There is an important logical tension in this debate. Critics of loyalty oaths often insist that they are completely moronic because they are completely meaningless and thus cannot exclude anyone who is disloyal. But of course if loyalty oaths really were meaningless to everybody, then imposing them also causes absolutely no harm.

What loyalty oaths do exclude are people who object to them. These are people who fall into basically two categories: (1) someone who is disloyal and uncommonly serious about abiding by their oaths; and (2) someone who has philosophical or other objections to the oath and is uncommonly serious about oaths.

On a rational basis test, we can imagine that category (1) is not zero, and therefore loyalty oaths are at least miniminally rational. On a more general cost-benefit test, the question is whether category (1) or category (2) dominates, and the respective harm or contribution that each category possesses. Simply saying that loyalty oaths are entirely meaningless refutes itself as an objection to them.


I'm with Professor Stone on this.

Here's an article ( http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/02/29/BAQPVAUVO.DTL ) explaining why the math teacher was fired.

Apparently she added the word "nonviolently" (gasp) to her oath.

Seems counter-productive to me to fire government employees who 1) care about oaths enough not to sign just anything; and 2) believe they have duties greater than "defending" the state or federal constitutions, right or wrong.

(What does defending the Constitution mean? Are people who swear to defend the Constitution bound to oppose amendments to it? If the Supreme Court says the Constitution says "no right to abortion," can a government employee still advocate for a right to abortion?)

- Marc


The idea solution would be for California State University East Bay to follow the law as it stands.

Universities have Legal departments, and HR departments. Isn't it a bit odd that they do not know what the EEOC says about this?
The University should modify the oath as long as it still serves its purpose to meet sincere religious objections.

Pretty Simple really.

The EEOC has several letters on this issue including sited cases.

Their conclusion:
II. Conclusion

In short, EEOC urges the Attorney General to reject the argument that § 1011 may not be modified under any circumstances to address an individual's religious objections. The EEOC believes that the USPS's request for specific instruction about what modifications are or are not allowable is inconsistent with the principle that determinations about reasonable accommodation and undue hardship are necessarily fact specific. If an employee needs an accommodation and the modification(s) offered by the USPS does not eliminate the religious conflict, the employee can be required to propose another revision which the USPS can then evaluate for undue hardship. The USPS need not consult either the EEOC or the Department of Justice to make that determination.

EEOC does not believe that the USPS must eliminate the oath requirement entirely. Like any agency, USPS presumably has a compelling interest in assuring the loyalty of its employees. See Biklen v. Board of Education, 333 F. Supp. 902, 909 (N.D.N.Y. 1971), aff'd 406 U.S. 951 (1972) ("The state has a demonstrable and compelling interest that [plaintiff] at least affirm her support of the Constitution[] of the United States"). Eliminating the oath requirement would, thus, undoubtedly constitute an undue hardship

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