California Über Alles?

June 11, 2008

Most Americans probably think of state-mandated loyalty oaths as relics of a bygone era, evoking the dark days of the Red Scare and McCarthyism. You might be surprised, however, to find that these illiberal tools for rooting out commies are still around in the 21st century — and that the California State University system is doing its bit to keep them alive.

The California Constitution requires all state employees to pledge that they will "support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic." You may be thinking to yourself, "What’s wrong with that?"

Well, first of all, it implies that state employees promise to take up arms, even if they are conscientious objectors or pacifists. That’s unacceptable. Our nation has a proud tradition of respecting the moral objections of individual citizens to war. (For a breathtaking example of non-violent wartime service, check out the inspiring story of Desmond Doss, the first conscientious objector to receive the Medal of Honor for his service as a medic in World War I.)

Even more troubling, however, the oath requires that state employees must swear that they "take this obligation freely, without any mental reservation or purpose of evasion." Making citizens pledge to feel certain things is a gross invasion of the right of private conscience. (One may also point out there is great irony in a mandatory oath requiring people say they take the oath "freely" — but as a favorite criminal law professor of mine used to say, "presence of irony is insufficient to invalidate a law.")

The loyalty oath was added to California’s state constitution in 1952 to keep Communists out of public employment. It was hardly justifiable then and it is a bizarre anachronism now.

But the oath is not merely a nostalgia piece. Wendy Gonaver, a lecturer at CSU-Fullerton, was fired last August for refusing to sign the oath. A Quaker and pacifist, Gonaver wished to clarify that she did not believe in a violent defense of the government, and requested that she be permitted to attach a brief statement to the oath expressing her personal objections and her belief in nonviolence. Fullerton refused to make this accommodation.

Thankfully, after nine months of stonewalling, Fullerton relented earlier this month, allowing Govaner to submit a revised addendum and reinstating her employment. Fullerton has since engaged in some amount of spin control about the case, but as long as Govaner can work in California without having to renounce her deepest beliefs, chalk it up as a victory for fundamental rights.

Unfortunately, however, Gonaver’s ordeal isn’t the only time the CSU system has dusted off the oath recently.

In February of this year, CSU-East Bay fired a Quaker math teacher for refusing to sign the oath without inserting the word "nonviolently." East Bay quickly reversed course, however, and reinstated the teacher.

Even worse, Neal Dach, a lab technician and Iraq war veteran, refused to sign the oath at CSU-San Bernardino because of his beliefs as a Jehovah’s Witness. Dach appealed to campus offices, but to no avail, and ultimately chose to work for free during the past academic year rather than sign the oath. Again, this is unacceptable.

The only upshot of these incidents is that they have brought attention to an unconstitutional relic that should have been done away with long ago. The American Association of University Professors has issued a statement against the oath and Marjorie Heins of the Free Expression Policy Project has written an excellent piece on the matter, rightly asserting that even "seemingly innocuous oaths, with their demand for symbolic gestures of loyalty, subtly squelch political dissent."

As Supreme Court Justice Robert H. Jackson wrote in West Virginia v. Barnette — a decision that bravely stated in the middle of World War II that it was un-American and unconstitutional to force students to say the pledge of allegiance against their will — "Compulsory unification of opinion achieves only the unanimity of the graveyard."

Simply put: As bad as it is to tell people what they can’t say, it is even worse to tell them what they must say, and worse still what they must think or believe. It is inconsistent for a society that believes in individual rights, free speech and free minds to require all of its employees to give up those freedoms.

For a society to be free and just, loyalty and patriotism must be inspired, not required. It’s time for California to enter the 21st century. The loyalty oath must go.

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