William Andrew Jackson, drummer for the Oakland punk-rock band Strung Up, has a patriotic name. Now he also has a patriotic conundrum.
A few weeks ago, he spent three days tearing down an old set for the Center REP theater in Walnut Creek, which is owned by the city. During his first lunch break, Jackson's boss handed over a packet of hiring papers to be returned the next day. The next day, the temp laborer handed one of them back un-inked: the oath of office all Walnut Creek employees must sign pledging to "support and defend" the United States and California constitutions "against all enemies, foreign and domestic."
"It's just plays! It's a theater. What does that have to do with the military and war?" Jackson asks. "I'm a proud American, but I don't feel that has anything to do with my job." And because the oath is so vague and general, he worried that signing it was tantamount to agreeing to be drafted at some point in the future. "They're basically enlisting me in the military by having me sign this," he says. And what's up with that whole "domestic" enemies thing? "What am I, a riot cop? Screw that. No way."
So, no signature. The theater's management sympathized with Jackson's stand, and hoped he'd be able to collect his pay without signing the oath, but Walnut Creek city officials have been less approving. They've withheld Jackson's paycheck about $300 and city attorney Tom Haas says they'll hang on to it until he signs. "The law says you don't get paid unless you sign the oath," Haas says. "It's a state law that applies to everybody."
True, the oath is taken directly from the California constitution, and all city employees throughout the state must sign. Yet not every city defines "employee" as broadly as Walnut Creek, which requires everyone from elected officials down to temps to sign. "Kids who are lifeguards out at the pool sign the oath; interns here for the summer from the high school, they do too," says City Clerk Patrice Olds. As far as anyone knows, Jackson is the first person ever to refuse. "This is brand-new territory for us," Olds says. "We've never had anybody not want to sign, because we look at it as an honor."
Within the East Bay, cities differ over which of their workers have to sign, and how strongly the law must be enforced. While some cities such as San Leandro and Alameda have policies nearly identical to Walnut Creek's, Albany City Clerk Jaqueline Bucholz says her city requires only permanent employees to sign. Some municipalities let conscientious objectors opt out: In Hayward, City Clerk Angelina Reyes says maybe ten out of nine hundred city workers have requested not to sign, usually for religious reasons, and the city has respected their wishes. "I wouldn't direct someone to withhold someone's payroll check because they didn't take the oath," she says.
Surprisingly, the oath has never been an issue in dissent-prone Berkeley. "It hasn't come up," says Dave Hodgkins, the city's human resources director. "Everybody in living memory has signed off on it."
Or maybe that's not so surprising new employees sign piles of HR boilerplate without much more than a glance at the small print. Even people with ethical qualms about the militaristic language of the oath may dismiss it as symbolic, rather than a literal pledge to bear arms. Then again, not everybody is young and male and being asked to sign while the country is embroiled in a seemingly endless war. And not everybody plays in a hardcore band whose oeuvre includes songs like "Death by Cop" and "Warfucked."
How binding is a city employee's pledge to "defend the Constitution"? Well, it's hard to say, because it's a largely hypothetical question that has rarely been raised in the courts. According to Margaret Crosby, attorney for the American Civil Liberties Union's Northern California branch, the last time the issue came up was in the 1970s, when a conscientious objector to the Vietnam draft who was assigned alternate service with the government also refused to sign the oath and launched a lawsuit.
A federal court in Sacramento ruled that the oath was more of a symbolic promise to uphold the principles of the Constitution rather than a vow of military service. However, Crosby says, "That was never appealed, so it is not as though there is a precedent on the books that would make it absolutely clear that the loyalty oath is not the equivalent of conscription. I think it's fair to say that it certainly has never been understood to require the actual taking up of arms, and I don't say that to denigrate [Jackson's] concerns because we do feel that these loyalty oaths are a relic of the McCarthy era that have long outlived whatever usefulness they used to have. ... Coercing people to sign pieces of paper is no test of true loyalty."
The ACLU lawyer argues, in fact, that such oaths are legally problematic. "Compelling a statement of loyalty is a clear violation of First Amendment rights," she says. Crosby expressed surprise that more East Bay city clerks didn't mention a religious exemption similar to Hayward's, since federal courts have upheld cases supporting the right of people specifically Jehovah's Witnesses, who object to swearing oaths to abstain from signing for religious reasons. And she says that while Jackson may be one of very few people to publicly object, he is by no means alone in his concerns. "The ACLU regularly receives calls from people confronted with this loyalty oath," Crosby says. "It is extremely troubling to many people, and most people do end up signing it because they need their paychecks."
Speaking of paychecks, Jackson thinks Walnut Creek officials are being unfair in withholding his after all, he'd already spent several hours breaking down sets before the oath was even presented to him, and he did three days' work under the impression that he'd be paid. As he points out, "It doesn't say on there what would happen if I decided not to sign the form."
Haas replies that this is normal most employees don't get pulled into the human resources office to fill out forms until they've worked a few hours on their first day. But he's very firm about what must happen next if Jackson wants his pay: "He signs the oath."
Jackson, on the other hand, is now more fired up by the principle than by the missing $300. "Even if they cut me a check," he says, "I still want to fight it."
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