Loyalty Oath

LOYALTY OATH

An oath that declares an individual's allegiance to the government and its institutions and disclaims support of ideologies or associations that oppose or threaten the government.

Loyalty oaths are required of government officials, such as the president, members of Congress and state legislatures, and members of the judiciary. Naturalized citizens are required to pledge their allegiance to the United States, as are members of the armed services. Employees in sensitive government positions may also be required to take a loyalty oath. (See U.S.C.A. § 1448; U.S. Const. art. II, § 1, cl. 7; U.S. Const. art. VI, cl. 3.)

Requiring an employee to promise to support the government as a condition of employment is constitutional as long as the requirement is reasonably related to the employee's fitness for the particular position. Loyalty oaths that infringe on a person's ability to exercise a constitutional right must be narrowly focused to achieve a legitimate government objective. If an oath is overly broad or vague, it may be found unconstitutional.

Loyalty oaths have played a role in American history since the settlement of the colonies. The Puritans in New England required citizens to pledge their support of the commonwealth and to report any individuals who advocated dissent against the government. To ensure unity the continental congress and the legislatures of the first states all enacted laws requiring citizens to pledge their allegiance to the U.S. government.

Loyalty oaths are often invoked during times of stress, such as wars, or when the government perceives an outside threat to security. For example, after the Civil War, some states enacted statutes that excluded from certain professions those who had been disloyal to the United States and had sympathized with the Confederacy. One statute that required an oath of prior loyalty for admission to the bar was found unconstitutional because it imposed a legislative punishment for past acts. (See Ex parte Garland, 4 Wall. 333, 71 U.S. 333, 18 L. Ed. 366 [1866]; Cummings v. Missouri, 4 Wall. 277, 71 U.S. 277, 18 L. Ed. 356 [1866].)

The period after world war ii was the high-water mark in the history of loyalty oaths. Fear of Communist subversion affected many aspects of life in the United States. There was particular concern that Communist sympathizers were obtaining employment in the government and in public schools. Thus the majority of states enacted statutes that required public employees, public school teachers, and university professors to sign a loyalty oath as a condition of employment. Under some of the statutes, schools were permitted to discharge teachers who were thought to be disloyal to the government. Most of the statutes required employees to pledge their support of the state and federal constitutions. Some also required teachers to promise to promote patriotism, pledge not to teach or advocate the forcible overthrow of the government, and swear that they did not belong to the Communist party or any other organization that advocated the overthrow of the government.

Most loyalty oaths required of public employees have been struck down by the Supreme Court, usually on the ground that they violate due process because they are vague and susceptible to wide interpretation. In Baggett v. Bullitt, 377 U.S. 360, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964), the Court invalidated Washington's statute requiring teachers and state employees to take a loyalty oath. This oath stated that the employee promised to support the federal and state constitutions and promote respect for the flag and reverence for law and order. The Court held that the oath was unduly vague, uncertain, and broad. The Court found further that it violated due process and infringed on the teachers' freedom of speech. (See also Cramp v. Orange

County, Florida, 368 U.S. 278, 82 S. Ct. 275, 7 L. Ed. 2d 285 [1961].)

The Court expressed a particular interest in protecting academic freedom from infringements imposed by loyalty oaths, in Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967). In declaring a New York loyalty statute unconstitutionally vague, the Court in Keyishian called academic freedom a "special concern of the First Amendment." It also expressed its belief that loyalty statutes that attempt to prescribe what a teacher can say threaten to "cast a pall of orthodoxy over the classroom."

Some loyalty oath statutes have been invalidated on the ground that they unconstitutionally infringe on freedom of association. In Wieman v. Updegraff, 344 U.S. 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952), the Court held that Oklahoma's loyalty oath offended due process because it indiscriminately penalized innocent association or membership in Communist or other subversive groups. That oath required public employees to deny any past affiliation with such organizations. Similarly, in Elfbrandt v. Russell, 384 U.S. 11, 86 S. Ct. 1238, 16 L. Ed. 2d 321 (1966), the Court invalidated Arizona's public employee loyalty oath on the ground that it infringed on the employees' freedom of association. To satisfy the Constitution, such statutes may penalize only those who join a subversive organization with knowledge of the group's illegal objectives and specific intent to further them. The Arizona statute denied public employment to anyone associated with a subversive organization, whether or not the person knew of the group's objectives or subscribed to them.

In some cases the Court has upheld loyalty oaths for government employees if the oaths meet certain requirements. The oaths may not infringe on freedom of speech or association and may not be unduly vague. According to the Court, requiring a public employee to promise to uphold and defend the Constitution and oppose the illegal overthrow of the government does not unduly burden freedom of speech or association. (See Cole v. Richardson, 405 U.S. 676, 92 S. Ct. 1332, 31 L. Ed. 2d 593 [1972].)

In 1994 a loyalty oath as a prerequisite for public employment was challenged on the ground that it violated religious freedom. In Bessard v. California Community College, 867 F. Supp. 1454 (E.D. Cal. 1994), the plaintiffs, who were Jehovah's Witnesses, stated that proclaiming loyalty to the government is prohibited by their religion. They argued that under the Religious Freedom Restoration Act of 1993 (RFRA) (42 U.S.C.A. § 2000bb et seq.), the state could not require them to take the loyalty oath as a condition of employment unless it could prove that it had a compelling interest that could not be served except by requiring the oath. The court held that the RFRA applied to the case, that the loyalty oath unconstitutionally infringed on the plaintiffs' religious freedom, and that the defendant must make reasonable accommodations for the plaintiffs. The court further noted that the defendant could ensure the plaintiffs' loyalty by having them sign a statement that they would not act contrary to the defendant's interests. In City of Boerne v. Flores, 117 S. Ct. 2157 (1997), the Supreme Court struck down RFRA as exceeding Congress's authority to safeguard rights under the fourteenth amendment. The Court held that RFRA was an unconstitutional encroachment on state power.

Government attempts to condition the receipt of certain benefits on a declaration of loyalty have generally been found unconstitutional. In Speiser v. Randall, 357 U.S. 513, 78 S. Ct. 1352, 2 L. Ed. 2d 1460 (1958), the Court held that requiring veterans to take a loyalty oath as a precondition to receiving a veterans' property tax exemption impinged on their free speech rights. Justice william j. brennan jr., writing for the majority, reasoned, "To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech." Brennan's opinion went on to state that the requirement would have a chilling effect on the claimant's exercise of free speech.

further readings

Hyman, Harold. M. 1982. To Try Men's Souls: Loyalty Tests in American History. Berkeley: Univ. of California Press.

Kalvern, Harry. 1988. A Worthy Tradition: Freedom of Speech in America. New York: Harper & Row.

Kutler, Stanley I. 1982. The American Inquisition: Justice and Injustice in the Cold War. New York: Hill and Wang.

Levinson, Sanford. 1986. "Constituting Communities through Words That Bind: Reflections on Loyalty Oaths." Michigan Law Review 84 (June).

Scanlan, John A. 1988. "Aliens in the Marketplace of Ideas." Texas Law Review 66 (June).

Senhauser, William B. 1987. "Education and the Court: The Supreme Court's Educational Ideology." Vanderbilt Law Review 40 (May).

Sullivan, Kathleen M. 1989. "Unconstitutional Conditions." Harvard Law Review 102 (May).

cross-references

Chilling Effect Doctrine; Cold War; Communism; Compelling State Interest; Due Process of Law; Void for Vagueness Doctrine.