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Ninth Circuit revives religious bias suit over California loyalty oath

The plaintiff claims pledging allegiance to the U.S. and California constitutions — and vowing to take up arms in defense of the state — violates her beliefs as a Jehovah's Witness.

SAN FRANCISCO (CN) — A Ninth Circuit panel on Monday revived a California state employee's lawsuit over being forced to take the public employee loyalty oath. 

Brianna Bolden-Hardge, who practices the Jehovah's Witness faith, says in her complaint against the Office of the State Controller that she began working for the California Franchise Tax Board — and did not sign the loyalty oath — in 2016. She later applied to work for the controller and was offered a higher-paying position. When the office asked her to take the oath, Bolden-Hardge requested an accommodation to sign with an addendum specifying that her religious allegiance was first, and that she would not take up arms. 

The office rejected this proposal and rescinded the job offer. Bolden-Hardge returned to a lower-paying job at the Franchise Tax Board, which permitted her to sign the same addendum.

Bolden-Hardge then sued the controller, saying she believes signing the oath would violate her religious beliefs. Her claims include violations of Title VII, failure to accommodate under the California Fair Employment and Housing Act and violations of the free exercise clauses of the federal and state constitutions. She sought declaratory relief and damages.

The defendants moved to dismiss the claims based on a lack of subject matter jurisdiction and for failure to state a claim. U.S. District Judge John Mendez of the Eastern District of California granted the motion without leave to amend in 2021, finding Bolden-Hardge could not plead further facts to save her claims because the case involved legal issues, not factual ones.

But on Monday, a three-judge Ninth Circuit panel consisting of U.S. Circuit Judges Mary Schroeder and Susan Graber — Jimmy Carter and Bill Clinton appointees, respectively — and Barack Obama appointee Michelle Friedland reversed the dismissal.

Writing for the panel, Friedland found Bolden-Hardge adequately stated claims for damages under Title VII and the California Fair Employment and Housing Act — which forbids an employer from denying a job to an applicant because of religion — and was entitled leave to amend her other claims. 

Friedland noted the U.S. Supreme Court has cautioned against “second-guessing the reasonableness” of an individual’s assertion that a requirement burdens her religious beliefs.

“With these principles in mind, we do not interrogate the reasonableness of Bolden-Hardge’s beliefs and instead focus our inquiry on whether she has alleged an actual conflict. We hold that she has done so,” Friedland said. 

She said the controller correctly pointed out that the oath does not expressly require a pledge of primary allegiance to federal and state constitutions, but it can be seen as requiring employees to place allegiance to the government over religious allegiances.

“Indeed, California’s apparent rationale for the oath requirement is to ensure that if an oath taker’s religion ever comes into conflict with the federal or state constitutions, religion must yield,” Friedland wrote for the panel.

The office said the oath is critical to ensure that public workers are committed, but Friedland said those arguments belie the position that the oath poses no conflict with Bolden-Hardge’s beliefs. 

“If an employee cannot claim ‘first loyalty to God,’ she must, by implication, owe first loyalty to something else — here, the federal and state constitutions,” Friedland wrote for the panel. “To 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.”

The judges noted the Third Circuit ruling in 1990, United States v. Board of Education — where the Department of Justice claimed the Philadelphia Board of Education violated Title VII by refusing to employ or accommodate public school teachers seeking to wear religious attire because doing so exposes administrators to serious consequences. 

Friedland said nothing suggests the controller would face legal consequences for accommodating Bolden-Hardge. Other state agencies hired her without requiring the oath, “calling into question the likelihood of enforcement, as well as the importance of any state interest we might otherwise infer from Supreme Court case law upholding the constitutionality of loyalty oaths in other contexts.”

Attorneys for the parties did not respond to requests for comment by press time.

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Categories / Appeals, Government, Regional, Religion

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