Metropolitan News-Enterprise


Tuesday, April 4, 2023


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Ninth Circuit Reinstates Challenge to State’s Loyalty Oath

Jehovah’s Witness Contests State Controller’s Action in Rescinding Job Offer When She Insisted on Addendum

To Oath Specifying That She Would Not Bear Arms and Would Put Loyalty to God Above Allegiance to State


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ordered reinstatement of an action by a Jehovah’s Witness challenging the action of California’s Office of State Controller in rescinding a job offer when she declined to take the loyalty oath prescribed by the state Constitution without an addendum specifying that she would not take up arms and that fidelity to her church came first.

Art. XX, §3 of the state Constitution requires that all public employees take an oath that begins:

“I,      , do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution 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.”

An employee of the California Franchise Tax Board was offered a higher paying job by the Controller’s Office, but it withdrew the offer when the employee insisted on this additional language:

“I, Brianna Bolden-Hardge, vow to uphold the Constitutions of the United States and of the State of California while working in my role as an employee of the State Controller’s Office. I will be honest and fair in my dealings and neither dishonor the Office by word nor deed. By signing this oath, I understand that I shall not be required to bear arms, engage in violence, nor to participate in political or military affairs. Additionally, I understand that I am not giving up my right to freely exercise my religion, nor am I denouncing my religion by accepting this position.”

The Franchise Tax Board, alerted to the fact that Bolden-Hardge had not taken the oath, insisted that she do so, but permitted her to append the clarifying language.

Multiple Theories

Bolden-Hardge brought an action in U.S. District Court for the Eastern District of California against the Controller’s Office and then-State Controller Betty T. Yee in her official capacity, putting forth various claims. Her allegation of religious discrimination in violation of Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (“FEHA”) was against the Controller’s Office, alone.

The defendants moved for an order dismissing the action, arguing:

“This case is about California’s constitutional requirement that public employees working on behalf of the people of the State of California should, at a minimum, take an oath to follow the federal and state constitutions. By committing to follow the highest laws of California and the United States, public employees are not required to forsake their God or their religion. Indeed, the federal and state constitutions guarantee the very free exercise of religion that plaintiff seeks to protect in this lawsuit. It is undisputed that plaintiff sought a job as a public employee, and, in that role, she was required by the California Constitution to take an oath to discharge her duties lawfully in the face of threats to democracy and the proper functioning of government. Indeed, recent events at the U.S. Capitol demonstrate that these threats to the federal constitution are very real. If a stale employee cannot commit to carry out her public service first, and place personal sympathies and allegiances aside, she is not qualified to be in public service.”

Plaintiff’s Response

Bolden-Hardge responded, in opposition:

“The California State Controller’s Office (SCO) withdrew a job offer it had made Brianna Bolden-Hardge to work in its payroll department after she asked to attach a statement to the state loyalty oath describing her religious beliefs. Notably, the statement nowhere disclaimed the oath but simply indicated that Bolden-Hardge’s first duty is to God and that she wouldn’t take up arms. What’s more, Bolden-Hardge’s request has been granted her in other California government jobs and is allowed by other state agencies, and similar accommodations were touted by former Governor Schwarzenegger as so obviously authorized by the state’s religious-accommodation laws as to not require an amendment to those laws on the point. At a minimum, therefore. SCO’s obstinance gives rise to claims under Title VII of the Civil Rights Act of 1964. the California Fair Employment and Housing Act (FEHA), and the U.S. and California Constitutions that are worthy of exploration and cannot be decided at this stage and on the pleadings.”

District Court Judge John A. Mendez on March 23, 2021, dismissed the action with prejudice.

Friedland’s Opinion

Reversal came in an opinion by Ninth Circuit Judge Michelle T. Friedland.

She quoted the Controller’s Office as setting forth in its brief that a “vague ‘first loyalty to God’ qualification to the oath would effectively nullify the oath,” adding that that “without an unqualified commitment to the Constitution, a promise to adhere to constitutional rules, except when they conflict with personal and undefined religious beliefs, is no promise at all.” Friedland responded:

“Although these are persuasive arguments supporting the oath’s importance, they belie the Controller’s Office’s position that the oath poses no conflict with Bolden-Hardge’s pleaded religious beliefs. If an employee cannot claim ‘first loyalty to God,’ she must, by implication, owe first loyalty to something elsehere, the federal and state constitutions.”

Conflict With Religion

The jurist declared:

“We…hold that Bolden-Hardge has adequately alleged that the ‘faith and allegiance’ component of the loyalty oath poses a conflict with her religious beliefs.”

Under Title XX, she recited, once an employee has made out a prima facie case of a failure to accommodate, the employer has the burden of providing a justification.

“[T]o exempt the Controller’s Office from a federal accommodation requirement solely because the requested accommodation would violate state law would essentially permit states to legislate away any federal accommodation obligation, raising Supremacy Clause concerns,” she said, rejecting the argument that permitting an addendum to the oath would violate the California Constitution.

“Where there is no indication of an actual threat of enforcement or liability for violating that state law, the risk that the state is attempting to evade federal accommodation requirements is too high to allow for dismissal at the pleading stage because of this sort of purported undue hardship,” she continued. “We therefore hold that the Controller’s Office is not entitled to a presumption of undue hardship.”

Disparate Impact

Bolden-Hardge also claimed, under Title VII, that disallowing an addendum to the loyalty oath has a disparate impact on Jehovah’s Witnesses. Friedland said:

“Accepting as true Bolden-Hardge’s well-pleaded allegation that other Jehovah’s Witnesses share this belief, we must presume that the oath requirement will impact ‘all or substantially all’ Jehovah’s Witnesses seeking government employment by making them feel they must choose between government employment and their religious beliefs—a burden not all prospective employees face.”

The defendants argued that if there is a disparate impact, there is a “business necessity” for it. Friedland set forth:

“But this is not apparent from the face of her Complaint or any judicially noticeable materials, particularly given the state’s alleged practice of exempting some employees from the oath requirement. As with the Controller’s Office’s defense of undue hardship, we therefore cannot affirm dismissal at this stage on business necessity grounds.”

Pleading Issues

The opinion also discusses pleading issues. She pointed out that Bolden-Hardge did not allege that she continues to wish employment by the Controller’s Office and “therefore lacks the actual and imminent threat of future injury required to have standing to seek prospective relief on any of her claims,” but said she should be granted leave to amend her pleading to state that desire.

“As currently pleaded, then, Bolden-Hardge’s alleged injury is redressable only through a claim for damages,”  Friedland wrote, noting:

“It is clear that she can seek damages from the Controller’s Office on her Title VII claims because that statute abrogates states’ sovereign immunity….She also can seek retrospective damages from the Controller’s Office under FEHA because state employers are likewise subject to suits for damages under that state law.”

Bolden-Hardge also sought damages against the Controller’s Office and Yee, in her official capacity, under 42 U.S.C. §1983, a civil rights statute. However, Friedland pointed out, that statute does not provide for damages against state offices or state officials.

The jurist noted that Bolden-Hardge had sought leave to amend the complaint to sue Yee in her individual capacity but Mendez denied that request. (Malia M. Cohen, Yee’s successor as state controller, has been substituted as a defendant.)

“There is no evidence in this case of delay, prejudice, or bad faith; Bolden-Hardge has not previously amended her Complaint; and it is not clear that amendment would be futile,” Friedland wrote. “Therefore, although the district court was correct to dismiss the federal free-exercise claim for lack of jurisdiction, it abused its discretion in denying leave to amend on that claim.”

The case is Bolden-Hardge v. California State Controller, 21-15660.


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