Loyalty oath

An oath of allegiance and faithfulness to the state required by a government of its citizens, particularly those in military service or government employment.

See the Introduction, Abbreviations and Pronunciation for further details.

Loyalty Oaths administered by colonial, revolutionary, confederate, federal, state, and municipal governments have asked pledgers to swear allegiance to the governing bodies. The contents of such oaths have varied, reflecting the political climates of their times, and often have been required only of particular individuals or groups, such as public officials and employees, persons feared to be subversives, residents of Confederate states, and educators. The best-known loyalty oath is the "Pledge of Allegiance," recited by schoolchildren and at many public events. Francis Bellamy wrote the original version of the Pledge of Allegiance in 1892. His version read, "I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all." Congress's addition of the words "under God" in 1954 came under attack by those objecting that it violated the separation of government and religion.

During World War II (1939–1945), the War Relocation Authority administered loyalty questionnaires to interned Japanese Americans, citizens as well as noncitizens. One of the questions asked respondents whether they would swear loyalty to the United States and renounce allegiance to the Japanese emperor or any other foreign power. Those who responded "no," or who qualified their answers—out of suspicion that the question was intended to trick them into admitting allegiance to Japan, or as an expression of bitterness about their confinement—were classified as "disloyal" and subsequently segregated from the 65,000 internees who had responded in the affirmative.

The red scares following World War I (1914–1918) and World War II fueled fears of plots against the U.S. government. Anticommunist panic surged after World War II as the Cold War developed. In 1947, President Harry Truman's Executive Order 9835 created a loyalty-security program that subjected federal employees and job applicants to loyalty and security checks and allowed the firing of employees found to be members of, or sympathetic to, the Communist Party or other groups characterized as subversive. In the 1930s and 1940s, some states, including New York and California, enacted legislation requiring educators to swear allegiance to the state and the nation, and to uphold their constitutions. In the late 1950s, two out of three states compelled loyalty oaths, with some schools and universities augmenting the loyalty requirement, essentially for the purpose of purging communists. For example, in 1949 the Regents of the University of California required all faculty and staff to swear that they were not members of the Communist Party or otherwise aligned with allegedly subversive organizations. The Board of Regents fired thirty-one professors who refused to take the anticommunist oath on the grounds that it violated principles of political and academic freedom.

Laws requiring loyalty oaths did not necessarily entail investigations into the actual beliefs, political associations, and fidelities of oath-takers. Although controversial, into the twenty-first century governments and educational institutions have asked employees to take such oaths. Critics have asserted that loyalty oaths were by themselves ineffective measures of a person's allegiances; that they were so vague as to be subject to broad and possibly capricious interpretations; or that they resulted from the political opportunism of legislators, and from governments' attempts to suppress dissent.

Bibliography

Daniels, Roger. Prisoners without Trial: Japanese Americans in World War II. New York: Hill and Wang, 1993.

Heale, M. J. American Anti-Communism: Combating the Enemy Within, 1830–1970. Baltimore: Johns Hopkins University Press, 1990.

Hyman, Harold M. To Try Men's Souls: Loyalty Tests in American History. Berkeley: University of California Press, 1959.

Schrecker, Ellen W. No Ivory Tower: McCarthyism and the Universities. New York: Oxford University Press, 1986.

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 every aspect of life in the United States. There was particular concern that Communist sympathizers were obtaining employment in the government and in public schools. This led the majority of states to enact 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 say that the requirement would have a chilling effect on the claimant's exercise of free speech.

See: Chilling Effect Doctrine; Cold War; Communism; Due Process of Law.

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