SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2074-93T2
STEPHEN JOHN GOUGH,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY,
Defendant-Respondent.
_______________________________
Argued: September 20, 1995 - Decided: November
17, 1995
Before Judges King, Landau and Kleiner.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County.
Stephen John Gough, appellant, argued the
cause pro se.
JoAnn Fitzpatrick, Deputy Attorney General,
argued the cause for respondent (Deborah T.
Poritz, Attorney General of New Jersey,
attorney; Ms. Fitzpatrick, on the letter
brief).
The opinion of the court was delivered by
KING, P.J.A.D.
Appellant unsuccessfully challenged the statutory oath of allegiance required of school teachers in this State. N.J.S.A. 41:1-1; N.J.S.A. 18A:26-9. He now appeals from the Law Division judgment in favor of the State and claims that New Jersey's traditional statutory oath of allegiance is an unconstitutional threat to his rights of free speech, association, assembly and
petition for redress of grievances. We disagree and affirm. We
conclude that the traditional statutory oath does not violate the
State and federal constitutional rights of speech and expression or
inhibit political beliefs or activities.
In September 1991, appellant Gough applied for a substitute-teaching position in the public school system in Neptune Township, Monmouth County. As part of the application requirements, pursuant to N.J.S.A. 18A:6-7See footnote 1, N.J.S.A. 18A:26-9,See footnote 2 and their implementing
regulations, N.J.A.C. 6:11-3.9(a) and N.J.A.C. 6:11-4.5(b),
appellant was required to sign an oath of allegiance, which states:
I, ......, do solemnly swear (or affirm) that
I will support the Constitution of the United
States and the Constitution of the State of
New Jersey, and that I will bear true faith
and allegiance to the same and to the
Governments established in the United States
and in this State, under the authority of the
people. *So help me God. (* Not mandatory).
[N.J.S.A. 41:1-1.]
Appellant apparently added to the oath, "qualify[ing]" it before he
signed it. His qualifying amendments to the oath are not in the
record before us.
Appellant claims that he was interviewed by Assistant
Superintendent James Terrell in October 1991 and was "led to
believe that eventually [he] would be called to substitute teach."
At Terrell's recommendation, appellant spent a day observing
classes at Neptune Middle School.
Appellant was never called to substitute teach. He claims
that in February 1992 he went to Terrell's office to inquire about
his status. Appellant tells us that Terrell's secretary informed
him that his application had been approved by the Neptune Township
Board of Education in October. However, the secretary allegedly
stated that Terrell "voided" appellant's application in December
because of the additions appellant made to the oath. Terrell's
secretary also allegedly informed appellant that the oath was the
only deficiency in his application.
Appellant claims that on two subsequent occasions, in February
and May 1992, he contacted Terrell, who provided him with the
statutory references to the oath requirement and with the name and
address of the State Department of Education's Certification Clerk,
Ida Graham. Appellant said that he then began to research the law
regarding the oath requirement.
By October 22, 1992 letter, appellant informed Graham about
his situation and claimed that he felt "that [he] took reasonable
action when faced with the oath form." Appellant also stated that
"I believe the oath requirement as presently worded infringes the
right to expression of dissent against government, and I still
would like to be a substitute teacher and perhaps eventually a
full-time teacher." Appellant then asked two questions in the
letter: first, whether the statute prohibited an applicant from
varying the wording of the oath; second, he asked "if I now, or in
the future in conjunction with an otherwise up-to-date and approved
application, properly execute the oath ..., that I would receive
the teaching certification; is that correct?"
By November 25, 1992 letter, Graham responded (1) "it is
correct that the oath of allegiance is statutory and must be
enforced accordingly and (2) a properly executed oath is required
for the issuance of a certificate." Neither the State's brief nor
appellant's brief tell us whether appellant made any further
efforts to obtain the substitute-teaching certificate. However,
appellant asserts in his brief that he "has been informed that if
at some future time, he properly executes the required statutory
affirmation/oath, then the teaching certificate will be issued."
Appellant filed this complaint in the Law Division on July 30,
1993 seeking a declaratory judgment "that [N.J.S.A. 41:1-1See footnote 3 and -3See footnote 4] are unconstitutional and, specifically, that they violate at
least the First and Fourteenth Amendments of the U.S. Constitution,
and probably also the Fifth and Ninth Amendments." In September
the State moved to dismiss the complaint for failure to state a
claim or in the alternative for summary judgment. Judge Ferren
heard argument on November 5, 1993. Appellant argued that (1)
a public employee "retains a right to express [dissent] against the
Government," (2) the oath infringes First Amendment rights; (3) as
a result of his "amendments" to the oath, he was denied employment
in breach of the State's duty to honor "federally guaranteed
rights;" and (4) the oath is vague because it does not "indicate
what sort of conduct is prohibited or required."
Appellant also argued the perjury issue. He contended that
his fears are not chimerical and that the oath "is taken under the
threat of the penalty of perjury for falsely subscribing to the
oath." Acknowledging that there has been no recent history of
prosecutions for perjury relating to oath-taking, appellant
reminded the court of the political environment of the 1950's and
of the so-called McCarthy Era "red-baiting" and argued that it
"[c]an go on again." Appellant also reminded the motion judge
that, as of 1962, "attorneys were no longer required to [take the
oath]." Appellant further recalled to the court that in 1967 the
Attorney General of New Jersey had recommended that the oath be
narrowed to require support of the federal and State constitutions
only. Appellant also claimed that the wording of the oath was
vague and indefinite, violating "substantive due process."
The Law Division judge observed accurately that appellant was
not contesting "that portion of the oath that deals with, `I will
support the Constitution of the United States and the Constitution
of the State of New Jersey.'" The judge recognized that appellant
challenged only the portion of the oath which stated, "I will bear
true faith and allegiance to the same, and to the Governments
established in the United States and in this State, under the
authority of the people."
The judge ruled that appellant's reliance on Baggett v.
Bullitt,
377 U.S. 360,
84 S.Ct. 1316,
12 L.Ed.2d 377 (1964), was
misplaced and that Hosack v. Smiley,
276 F. Supp. 876 (D. Colo.
1967), aff'd,
390 U.S. 744,
88 S.Ct. 1442,
20 L.Ed.2d 275 (1968),
controlled. The judge also recalled our opinion in Imbrie v.
Marsh,
5 N.J. Super. 239 (App. Div. 1949), aff'd,
3 N.J. 578
(1950), in which we recited the history and meaning of loyalty
oaths. He ruled that appellant's fear that the oath "will impinge
upon his First and Fourteenth Amendment rights" was unfounded and
dismissed the complaint for failure to state a claim. R. 4:6-2; R.
4:46-2.
This State's first loyalty oath was adopted on September 19, 1776 (1776 oath), and required the affiant to "profess and swear, (or, if one of the People called Quakers, affirm) That I do and will bear true Faith and Allegiance to the Government established in this State under the Authority of the People. So help me God."
P.L. 1776, c. 2; Imbrie v. Marsh, 3 N.J. 578, 581 (1950) (Case and Oliphant, Justices, dissenting). Notably, the 1776 oath, with the addition of "United States," is essentially the same text that appellant is challenging in the present case.
In 1799, the Legislature enacted a law requiring "every person who is or shall be required by law" to take an oath "of fidelity and attachment to the government of this State" which encompassed the wording of the 1776 oath. Id. at 606 (dissenting opinion). The 1799 law also designated those required to take the oath, including the Governor "for the time being," all elected officials, attorneys, jurors and teachers. Interestingly, the statute provided:
That if any schoolmaster or usher shall
neglect or refuse to take and subscribe the
said oath of allegiance, for the space of one
month after he enters upon the duties of his
profession, he shall, for every week after the
expiration of the said month that he continues
to keep school or teach as an usher, until he
shall take and subscribe the said oath,
forfeit four dollars, to be recovered by
action of debt, with costs, by any person, who
will sue for the same.
[P.L. 1799 (Paterson's Laws 376, Sections 1
and 2); Imbrie, supra, 3 N.J. at 607
(dissenting opinion).]
This oath was "carried forward through successive revisions and
compilations into the Revised Statutes of 1937, 41:1-1, N.J.S.A."
Id. at 581-82. The oath underwent several changes between 1949 and
1971. In 1949, during the beginning of what later became known as
the "red-baiting McCarthy Era" and the early Cold War period, the
Legislature amended the oath. The amended oath began with the
still-current language requiring the affiant to:
[S]olemnly swear (or affirm) that I will
support the Constitution of the United States
and the Constitution of the State of New
Jersey, and that I will bear true faith and
allegiance to the same and to the Governments
established in the United States and in this
State, under the authority of the people;
However, the 1949 oath continued by requiring the following
additional language:
and I will defend them [the constitutions and
governments] against all enemies, foreign and
domestic; that I do not believe in, advocate
or advise the use of force, or violence, or
other unlawful or unconstitutional means, to
overthrow or make any change in the Government
established in the United States or in this
State; and that I am not a member of or
affiliated with any organization, association,
party, group or combination of persons, which
approves, advocates, advises or practices the
use of force, or violence, or other unlawful
or unconstitutional means, to overthrow or
make any change in either of the Governments
so established; and that I am not bound by any
allegiance to any foreign prince, potentate,
state or sovereignty whatever. So help me
God.
[N.J.S.A. 41:1-1, -3; (L. 1949, c. 21 and 22.]
In 1962 the Legislature clarified some of the oath's wording,
but made no material changes. L. 1962, c. 202. In a September 1,
1967 opinion, Attorney General Sills advised the Commissioner of
Education that the amended 1949 language was unconstitutional.
Consequently, in 1971 the Legislature deleted from the oath the
language added in 1949. L. 1971, c. 217.
Appellant stresses that the current oath is more than just an
formality. In addition to the requirement that a teaching
applicant sign the oath as a condition of employment, N.J.S.A.
41:3-1 provides that an affiant will be "deemed guilty of perjury
and punished accordingly" if he "willfully and corruptly" falsely
swears to the oath. N.J.S.A. 41:3-1. Perjury is a third-degree
crime. N.J.S.A. 2C:28-1.
As we have observed, appellant here did not challenge that
part of the oath requiring support of and allegiance to the federal
and State constitutions. He challenged only the provision
requiring that the subscriber bear true faith and allegiance to the
same and to the Governments established in the United States and in
this State under the authority of the people. He claims these
words are ambiguous and imply that the subscriber relinquishes the
right to express disagreement with or dissent against the
government. He also claims that the wording is vague and
overbroad.
Only two New Jersey cases, Imbrie v. Marsh, supra, and Thorp
v. Board of Trustees of Schools for Industrial Education of Newark,
6 N.J. 498, vacated,
342 U.S. 803,
72 S.Ct. 35,
96 L.Ed. 608
(1951), have considered direct challenges to N.J.S.A. 41:1-1 and -3. In Imbrie, candidates for the Assembly and the office of
Governor challenged the constitutionality of R.S. 41:1-1 and -3 as
amended by the Legislature in 1949 to include the recited language
certifying that the affiant did not advocate and was not a member
of a group that advocated the use of force or violence to overthrow
the government. In Imbrie these challengers argued that the
Legislature did not have the authority to add to the qualifications
for public office provided by the Constitution of New Jersey and
could not add to the oath provided in the Constitution for members
of the Legislature and the Governor. Imbrie, 5 N.J. Super. at 242.
We there noted that Article IV, section 8, paragraph 1, required
members of the Legislature to "solemnly swear [to] support the
Constitution of the United States and the Constitution of the State
of New Jersey, and that I will faithfully discharge the duties of
senator (or member of the General Assembly) according to the best
of my ability." N.J. Const., art. IV, § 8, cl. 1. The New Jersey
Constitution also required that "[e]very State officer, ..., shall
take and subscribe an oath or affirmation to support the
Constitution of this State and of the United States and to perform
the duties of his office faithfully, impartially and justly to the
best of his ability." N.J. Const., art. VII, § 1; Imbrie, 5 N.J.
Super. at 242.
In Imbrie, we also noted that the Constitution of the United
States, Article VI, requires that "Senators and Representatives
..., and the Members of the several State Legislatures, and all
executive and judicial Officers, both of the United States and of
the several States, shall be bound by Oath or Affirmation, to
support this Constitution ...." U.S. Const., art. VI, cl. 3;
Imbrie, supra, 5 N.J. Super. at 244. See also U.S. Const., art.
II, § 1, cl. 7 (President swears to "faithfully execute the Office
of President ..., and ... preserve, protect and defend the
Constitution ....").
Stating that the "Legislature has no authority to curb [the]
right of the people" to elect a constitutionally-qualified
candidate for office, we held in Imbrie that the "framers of our
constitution denied to the Legislature authority to devise any
other oath." Id. at 246. Therefore, with regard to the "Governor,
Senators and members of the General Assembly, and candidates for
those offices," we found the 1949 oath unconstitutional. However,
with regard to other officers and Article VII, section 1, para. 1,
we stated:
The clause in our constitution respecting the
oath of other state officers is differently
framed; it sets forth the ground to be covered
by the oath, but probably leaves some scope to
legislative action. We may surmise, for
instance, that the duties of the office may be
set forth with some particularity in the oath.
But no oath can be required that does not come
within what the constitution prescribes.
[Imbrie, 5 N.J. Super. at 246-47.]
Although the constitutionality of that part of the oath
derived from the original 1776 oath was not challenged in Imbrie,
we concluded that the original 1776 oath and other such "simple"
oaths of allegiance were an "expression of devotion to the
government," and that "[s]uch an oath is no more than a brief
express engagement of that which every citizen impliedly owes to
his country." Id. at 243. "By allegiance is meant the obligation
of fidelity and obedience which the individual owes to the
government under which he lives or to his sovereign in return for
the protection he receives." Id. (quoting Carlisle v. United
States,
16 Wall. 147,
21 L.Ed. 426 (1872)).
Our opinion in Imbrie was affirmed by the Supreme Court.
Imbrie, 3 N.J. at 593. The Supreme Court also discussed but did
not specifically rule on limiting the loyalty oath for officers
other than legislators and the Governor to that provided in the
Constitution. After reviewing the oath's history, including
records of debates during the Constitutional Convention of 1844,
the Court stated:
In the face of this debate ... the re-enactment in P.L. 1846, c. 25 ..., of the
[1776 oath], cannot be deemed a
contemporaneous construction of the intent of
the Constitutional Convention insofar as any
statutory oaths for members of the Legislature
are concerned. The constitutional oath
prescribed for members of the Legislature was
exclusive and beyond the power of legislative
interference, although the Legislature was
still free to prescribe the oath of allegiance
for all other officers commissioned by the
State, the Constitutional Convention having
struck down any constitutional oath for state
officers generally.
[Imbrie, 3 N.J. at 591 (emphasis added).]
In 1951, the Supreme Court upheld the 1949 oath, which had
embellished on the 1776 oath, against a constitutional challenge by
a teacher whose employment contract was terminated when he refused
to take the oath. Thorp, supra, 6 N.J. at 504-05. The teacher was
employed under a contract for one semester, "for a total
compensation of $1,800, ...." Id. at 505. When the teacher
refused to take the 1949 oath a week after beginning employment,
"his teaching employment was for that reason terminated by the
trustees, although he was retained in a non-teaching capacity for
the remainder of the contract term at the same salary." Ibid. The
Supreme Court disagreed with the teacher's reliance on Imbrie,
finding that teachers are not public officers because "[t]eaching
in the public schools does not involve the exercise of governmental
powers." Id. at 506.
With regard to the teacher's First Amendment challenge to the
1949 oath, the Thorp Court first said that the "fundamental civil
liberties here involved are not absolute. ... Government has the
inherent right of self-protection against the forces that would
accomplish its overthrow by violence." Id. at 508. The Court
further noted that:
The purpose of the oath is not to probe the mind of the teacher for the punishment of unorthodox or heretical views and beliefs, ... but rather to determine the teacher's qualifications for the instruction of youth in the public schools. ... There is no interdiction upon the freedom of opinion, no effort to control thought, no censorship nor invasion of the sphere of conscience in matters of religion. The aim is not to stifle beliefs as such, but to disqualify for
teaching one who, however capacitated
otherwise, believes in the objective of
overthrow of the government, Federal or State,
by force or violence or other unlawful means.
... One so mentally conditioned is deemed
unsuited for the instruction of youth ....
This constitutes an entirely reasonable
accommodation of the fundamental personal
rights and the common interest in the safety
of Government and the integrity of its
educational processes. The Legislature might
well find that the teacher would carry that
objective into his teaching. Thus, there is
no undue infringement of civil liberties; no
more than is needful for the essential public
welfare.
[Id. at 511-12.]
The Court maintained that the "purity of the educational process"
was "of the highest concern to society." Id. at 513. The Court
also remarked that "[l]oyalty to government and its free democratic
institutions is a first requisite for the exercise of the teaching
function," ibid., and that the "Legislature may secure youth
against indoctrination in the alien ideology of force and violence;
and reasonable measures to that end are not obnoxious to the First
Amendment." Id. at 514.
The Thorp Court also found that the 1949 oath was not
unconstitutionally vague and that, under R.S. 41:3-1, criminal
prosecution for false swearing was not maintainable unless the
swearing was "willful and corrupt;" therefore, there was a
"reasonably ascertainable standard of guilt comporting with the
requirements of due process." Id. at 515. The Court found, as
well, that the statute was not a bill of attainder or an ex post
facto law, because the individuals were not being punished for past
actions, but instead were "subject to possible loss of position
only because there is a substantial ground for the congressional
judgment that their beliefs and loyalties will be transformed into
future conduct." Id. at 516.
If Thorp were still controlling law, appellant's state-law
challenge at this level might well be foreclosed automatically by
our Supreme Court's decision in Thorp. But the United States
Supreme Court granted certiorari in Thorp, and stated that "[i]t
appearing that the cause has become moot, the judgment of the
Supreme Court of New Jersey is vacated and the cause is remanded
for such proceedings as by that Court may be deemed appropriate."
Thorp,
342 U.S. 803,
72 S.Ct. 35,
96 L.Ed. 608 (1951). No further
proceedings are extant. Apparently, the United States Supreme
Court found the case "moot," at least for federal purposes, because
the teacher's contract lasted for one semester and he was retained
for that semester in a non-teaching capacity at the same salary.
See C. Willard Heckel, Constitutional Law,
6 Rutgers L. Rev. 27, 28
(1951).
The United States Supreme Court has generally approached First Amendment challenges to loyalty oaths by "balanc[ing] individual rights against the governmental need and purpose, and, where the need and purpose ... justify the restriction imposed by the oath requirement, [by] further scrutiniz[ing] the challenged provision to determine whether its scope and operation in restraining individual liberties are within the limits of constitutional due
process." A. M. Vann, Annotation, Validity of Governmental
Requirement of Oath of Allegiance or Loyalty .... Supreme Court
Cases,
19 L.Ed.2d 1333, 1339 (1967). If a "legitimate and
substantial" governmental purpose is present, restrictions on First
Amendment rights must be narrowly tailored to achieve that end.
Keyishian v. Board of Regents of New York,
385 U.S. 589, 602,
87 S.Ct. 675, 683,
17 L.Ed.2d 629, 640 (1967). Under due process
analysis, the federal Supreme Court will also consider whether the
oath is invalid because of constitutional vagueness. Further, the
Court will examine the oath for overbreadth, although "in examining
a loyalty oath provision for overbreadth, [the Court] has sometimes
appeared to be merely extending its vagueness test." Vann, supra,
19 L.Ed.
2d at 1343. Constitutional vagueness of laws affecting
First Amendment interests may either result in the absence of fair
notice or impose a "chilling" effect on speech. "The fear, in
short, is that the `notice' may be too effective." Laurence H.
Tribe, American Constitutional Law, § 12-31, at 1034 (2d ed. 1978).
In Cole v. Richardson,
405 U.S. 676,
92 S.Ct. 1332,
31 L.Ed.2d 593 (1972), the United States Supreme Court reviewed prior
decisions which involved challenges to oaths and which had resulted
in a certain amount of clearly settled law. The Court stated:
We have made clear that neither federal nor state government may condition employment on taking oaths that impinge on rights guaranteed by the First and Fourteenth Amendments respectively, as for example those relating to political beliefs. [citations omitted.] Nor may employment be conditioned on an oath that one has not engaged, or will not engage, in protected speech activities such as the
following: criticizing institutions of
government; discussing political doctrine that
approves the overthrow of certain forms of
government; and supporting candidates for
political office. [citations omitted.]
Employment may not be conditioned on an oath
denying past, or abjuring future,
associational activities within constitutional
protection; such protected activities include
membership in organizations having illegal
purposes unless one knows of the purpose and
shares a specific intent to promote the
illegal purpose. [citations omitted.] ... And
finally, an oath may not be so vague that
"`men of common intelligence must necessarily
guess at its meaning and differ as to its
application [because such an oath] violates
the first essential of due process of law.'"
Cramp v. Board of Public Instruction, [
368 U.S. 278, 287,
82 S.Ct. 275,
7 L.Ed.2d 285,
292 (1961).] Concern for vagueness in the
oath cases has been especially great because
uncertainty as to an oath's meaning may deter
individuals from engaging in constitutionally
protected activity conceivably within the
scope of the oath.
[Id. at 680-81, 31 L.Ed.
2d at 599-600.]
The Court has consistently ruled unconstitutional oaths holding affiants "accountable for the beliefs, intentions, or actions of other persons or organizations simply on the basis of [the affiant's] political association or affiliation with those persons or organizations." Vincent Blasi, The Pathological Perspective and the First Amendment, 85 Columbia L. Rev. 449, 461 (1985). In Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L. Ed.2d 321 (1966), the Court dealt with an oath similar in part to the New Jersey oath. There, the affiant was required to affirm that the affiant would support the federal and state constitutions and the laws of the State of Arizona and "bear true faith and
allegiance to the same, and defend them against all enemies,
foreign and domestic ...." Id. at 12-3,
86 S.Ct. at 1238, 16
L.Ed.
2d at 322-23. However, unlike the current New Jersey oath,
the "Legislature ... subject[ed] to a prosecution for perjury and
for discharge from public office anyone who took the oath and who
`knowingly and wilfully becomes or remains a member of the
communist party of the United States or its successors or any of
its subordinate organizations' or `any other organization' having
for `one of its purposes' the overthrow of the government ... where
the employee had knowledge of the unlawful purpose.'" Id. at 13,
16 L.Ed.
2d at 323. A Quaker teacher declined to take the oath,
claiming that she did not understand its meaning, and sued for
declaratory relief.
The Elfbrandt Court declared that any oath limiting "mere
knowing membership, without any showing of `specific intent'" to
achieve an illegal aim, was unconstitutional. The Court observed
that an affiant "who is, or thereafter becomes, a knowing member of
an organization which has as `one of its purposes' the violent
overthrow of the government, is subject to immediate discharge and
criminal penalties." Id. at 16,
86 S. Ct. 1238, 16 L.Ed.
2d at
325. The Court found that "[l]aws ... which are not restricted in
scope to those who join with the `specific intent' to further
illegal action impose, in effect, a conclusive presumption that the
member shares the unlawful aims of the organization." Id. at 17,
86 S. Ct. 1238, 16 L.Ed.
2d at 325. Therefore, the Arizona law
"threatens the cherished freedom of association protected by the
First Amendment...." Id. at 18, 16 L.Ed.
2d at 325. Accord
Keyishian v. Board of Regents of New York,
385 U.S. 589,
87 S.Ct. 675,
17 L.Ed.2d 629 (1967). Because the Elfbrandt Court did not
address the Arizona oath's wording regarding "true faith and
allegiance" to the constitutions and laws or the requirement to
"defend them against all enemies," Elfbrandt differs substantially
from the case before us.See footnote 5
In Baggett v. Bullitt,
377 U.S. 360,
84 S.Ct. 1316,
12 L.Ed.2d 377 (1964), the Court again addressed the constitutionality of a
teacher's oath. There, the State of Washington's oath, originating
in 1931, required teachers to swear that they would support the
federal and state constitutions "and laws of the United States []
and of the State of Washington, and [would] by precept and example
promote respect for the flag and the institutions of the United
States [] and the State of Washington, reverence for law and order
and undivided allegiance to the government of the United States."
Id. at 361-62, 12 L.Ed.
2d at 379. Teachers were further required
to "certify," pursuant to a later 1955 statute, that they had read
and were "familiar with" Washington's Subversive Activities Act,
and that they were "not a subversive person as therein defined."
Id. at 365-66, 12 L.Ed.
2d at 381-82. Teachers were also required
to swear that they were not "member[s] of the Communist party or
knowingly of any other subversive organization." Ibid. The oath
form further required affiants to signify their understanding that
the statement and oath were "subject to the penalties of perjury."
Id. at 364 n.3, 84 S.Ct. at 1319 n.3, 12 L.Ed.
2d at 381 n.3. The
Baggett Court found that the "oath requirements and the statutory
provisions on which they are based are invalid on their face
because their language is unduly vague, uncertain and broad." Id.
at 366, 12 L.Ed.
2d at 382.
The Baggett Court first addressed the provisions of the 1955
law relating to "subversive" persons and members of the Communist
party. The Court found that, like the oath in Cramp v. Board of
Public Instruction,
368 U.S. 278, 279,
82 S.Ct. 275,
7 L.Ed.2d 285,
287 (1961), requiring teachers to swear that they had never lent
their "aid, support, advice, counsel or influence to the Communist
Party," the Washington oath "forb[ade] or requir[ed] conduct in
terms so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application ...." The
Court held that the oath violated due process. Baggett, supra, 377
U.S. at 366-67, 84 S. Ct. at 1322, 12 L.Ed.
2d at 382.
The Baggett Court did not merely invalidate the provisions
affecting "associational" rights, however. The Court also found
unconstitutionally vague the portions of the 1931 oath requiring
teachers to "promote respect for the flag and the institutions of
the United States and the State of Washington." Id. at 370, 84 S.
Ct. at 1322, 12 L.Ed.
2d at 384. The Court discussed possible
examples which "might be deemed inconsistent with the required
promise," including refusing to salute the flag and criticizing the
flag's design or color. The Court further questioned whether
promoting respect for "institutions" prevented a professor "from
criticizing his state judicial system ... or "proscribe[d]
advocating the abolition, for example, of the Civil Rights
Commission ...." Id. at 371, 84 S. Ct. at 1322, 12 L.Ed.
2d at 384-85. The Court continued:
It is likewise difficult to ascertain what
might be done without transgressing the
promise to "promote ... undivided allegiance
to the government of the United States." It
would not be unreasonable for the serious-minded oathtaker to conclude that he should
dispense with lectures voicing far-reaching
criticism of any old or new policy followed by
the government of the United States. He could
find it questionable under this language to
ally himself with any interest group dedicated
to opposing any current public policy or law
of the Federal Government, for if he did, he
might well be accused of placing loyalty to
the group above allegiance to the United
States.
Indulging every presumption of a narrow
construction of the provisions of the 1931
oath, consistent, however, with a proper
respect for the English language, we cannot
say that this oath provides an ascertainable
standard of conduct or that it does not
require more than a State may command under
the guarantees of the First and Fourteenth
Amendments.
[Id. at 372-73, 12 L.Ed.
2d at 384.]
The Court also explained that teachers "with a conscientious
regard for what they solemnly swear or affirm, sensitive to the
perils posed by the Oath's indefinite language, avoid the risk of
loss of employment, and perhaps profession, only by restricting
their conduct to that which is unquestionably safe. Free speech
may not be so inhibited." Id. at 372-73, 84 S. Ct. at 1323, 12
L.Ed.
2d at 385-86.
Finally, the Baggett Court declined to rely upon "a
prosecutor's sense of fairness" to avoid prosecution for
constitutionally protected activity "seemingly embraced within the
sweeping statutory definitions." Id. at 373, 84 S. Ct. at 1323, 12
L.Ed.
2d at 386. The Court determined that "[w]ell-intentioned
prosecutors and judicial safeguards do not neutralize the vice of
a vague law. Nor should we encourage the casual taking of oaths by
upholding the discharge or exclusion from public employment of
those with a conscientious and scrupulous regard for such
undertakings." Id. at 373-74, 12 L.Ed.
2d at 386. The Court also
rejected the argument that the oath did not violate due process
because it involved the promise of future conduct. The Court found
that the "future conduct" argument "ignores ... the effect [of the
oath] ... on those who believe the written law means what it says."
Id. at 374, 12 L.Ed.
2d at 386. In finding the Washington oath
unconstitutionally vague, the Baggett Court concluded:
[W]e do not question the power of a State to
take proper measures safeguarding the public
service from disloyal conduct. But measures
which purport to define disloyalty must allow
public servants to know what is and is not
disloyal.
[Id. at 379-80, 84 S. Ct. at 1327, 12 L.Ed.
2d
at 390.]
In Whitehill v. Elkins,
389 U.S. 54, 62,
88 S.Ct. 184, 188,
19 L.Ed.2d 228, 234 (1967), the Court found a Maryland teacher's oath
invalid because of "an overbreadth that makes possible oppressive
or capricious application as regimes change." The Court voided the
oath, finding "another classic example of the need for `narrowly
drawn' legislation [citation omitted] in this sensitive and
important First Amendment area." Ibid. The oath found
unconstitutional in Whitehill required teachers to "certify" that
they were "not engaged in one way or another in the attempt to
overthrow the Government of the United States, or the State of
Maryland, or any political subdivision of either of them, by force
or violence." Id. at 55, 19 L.Ed.
2d at 230. The oath required
affiants to further certify that they understood they were "subject
to the penalties of perjury." Id. at 56, 19 L.Ed.
2d at 230. The
Court determined that the oath had to be read in conjunction with
another Maryland statute defining "subversive" persons and
organizations. Id. at 56-57, 19 L.Ed.
2d at 230. The Court found
it unclear whether "a member of a group that was out to overthrow
the Government by force or violence [could be held] engaged in that
attempt `in one way or another' within the meaning of the oath,
even though he was ignorant of the real aims of the group and
wholly innocent of any illicit purpose." The Court found that it
could not answer the question, "nor could a prospective employee
know, save as he risked a prosecution for perjury." Id. at 59, 88
S.Ct. at 186, 19 L.Ed.
2d at 232.
A few years later, in MacKay v. Rafferty,
321 F. Supp. 1177
(N.D. Cal.) (Hamlin, Circuit Judge, dissenting), aff'd,
400 U.S. 954,
91 S.Ct. 355,
27 L.Ed 2d 263 (1970), a three-judge federal
trial-level court declared unconstitutionally vague a California
teacher's oath somewhat similar to the oath in Baggett. The oath
required teachers to "support" the federal and state constitutions
and "laws" to "promote respect" for the flag, law and order, and to
pledge "allegiance to the government of the United States of
America." Id. at 1177. Unlike Baggett, MacKay did not involve a
statute requiring teachers to certify that they were not members of
a subversive group. However, the three-judge court found that the
California oath was "essentially indistinguishable" from the one
declared unconstitutional in Baggett and "permanently enjoined" the
oath's use. Id. at 1177-78.
In Cole v. Richardson,
405 U.S. 676,
92 S.Ct. 1332,
31 L.Ed.2d 593 (1972), a four-member majority of the Court (Justices Powell
and Rehnquist did not participate) upheld a Massachusetts loyalty
oath against constitutional challenge by a research sociologist
discharged by a state hospital for refusing to take the oath.
There, the oath required of all public employees stated that the
affiant would "uphold" the federal and state constitutions and
would "oppose the overthrow of the [federal and state]
government[s] ... by force, violence or by any illegal or
unconstitutional method." Id. at 677-78, 92 S.Ct. at 1333, 31
L.Ed.
2d at 598-99.
The Cole Court first reviewed cases upholding "support oaths,"
i.e., those "addressed to the future, promising constitutional
support in broad terms." The Court noted that the "Constitution
itself prescribes comparable oaths in two articles." Id. at 681,
92 S.Ct. at 1336, 31 L.Ed.
2d at 600. The Court then found it
"clear that an oath need not parrot the exact language of the
constitutional oaths to be constitutionally proper" and noted that,
in an earlier case, the Court had sustained a teacher's oath
requiring the affiant to swear to "uphold" the federal and state
constitutions. Id. at 682, 92 S.Ct. at 1336, 31 L.Ed.
2d at 601;
Ohlson v. Phillips,
397 U.S. 317,
90 S.Ct. 1124,
25 L.Ed.2d 337
(1970)(affiants swear to uphold state and federal constitutions and
"faithfully perform the duties of the position ...."). The Cole
Court approved the District Court's language in Ohlson, recognizing
that "`ours is a government of laws and not of men,' and that the
oath involved an affirmation of `organic law' and rejection of `the
use of force to overthrow the government.'" Cole, supra, 405 U.S.
at 682, 92 S.Ct. at 1336, 31 L.Ed.
2d at 601.
The Cole Court observed that the District Court had "properly
... approved" the first clause of the Massachusetts oath requiring
affiants to "uphold and defend" the constitutions. However, the
Cole majority disapproved of the District Court's "highly
literalistic approach" in striking down the clause "oppose the
overthrow of the government ... by force, violence or by an illegal
or unconstitutional method." Ibid. Instead the Court found that
"support" oaths did not "create specific responsibilities" but
merely assured "that those in positions of public trust were
willing to commit themselves to live by the constitutional
processes of our system." Id. at 684, 92 S.Ct. at 1337, 31 L.Ed.
2d
at 602. The Court found that the second clause of the oath "is a
commitment not to use illegal and constitutionally unprotected
force to change the constitutional system. The second clause does
not expand the obligation of the first; it simply makes clear the
application of the first clause to a particular issue." Ibid.
The Cole Court explained that it could not presume that the
legislature "intended by its use of such general terms as `uphold,'
`defend,' and `oppose' to impose obligations of specific, positive
action on oath takers. Any such construction would raise serious
questions whether the oath was so vague as to amount to a denial of
due process." Id. at 684-85, 92 S.Ct. at 1337, 31 L.Ed.
2d at 602.
Further, the Court declined to find the oath "void for vagueness"
because "the oath is `no more than an amenity.'" Id. at 685, 92
S.Ct. at 1337, 31 L.Ed.
2d at 603. The Court found that the oath
was "punishable only by a prosecution for perjury and, since
perjury is a knowing and willful falsehood, the constitutional vice
of punishment without fair warning cannot occur here." Further,
the Court found no problem with "the punishment inflicted by mere
prosecution" because there had been no prosecution under the statue
since its 1948 enactment. Ibid.
Justices Douglas, Brennan, and Marshall dissented in Cole.
Justice Douglas found that the "oppose the overthrow" language
impinged upon the right to advocate unpopular ideas in the abstract
without actively preparing a group for violent action. Id. at 688,
92 S.Ct. at 1335, 31 L.Ed.
2d at 604-05. Justice Douglas also noted
that the "line between the permissible control by a State and the
impermissible control is `the line between ideas and overt acts.'"
Id. at 688, 92 S.Ct. at 1339, 31 L.Ed.
2d at 605. Because the
second clause was unconstitutional, Justice Douglas felt the
"entire oath must fall." Id. at 690, 92 S.Ct. at 1340, 31 L.Ed.
2d
at 606.
Justice Marshall, joined by Justice Brennan, found the oath
both unconstitutionally vague and overbroad. Id. at 693-94, 695-97, 92 S.Ct. at 1342, 31 L.Ed.
2d at 608, 609-10. Justice Marshall
urged that the prevalence of loyalty oaths should not lead the
Court to "ignore the difficult constitutional issues that they
present. It is the duty of judges, ..., to endeavor to remain
sensitive to these issues and not to `encourage the casual taking
of oaths by upholding the discharge or exclusion from public
employment of those with a conscientious and scrupulous regard for
such undertakings." Id. at 697-98, 92 S.Ct. at 1344, 31 L.Ed.
2d at
610.
In the case presently before us, Judge Farren of the Law Division relied upon Hosack v. Smiley, 276 F. Supp. 876 (D. Colo. 1967), aff'd, 390 U.S. 744, 88 S.Ct. 1442, 20 L.Ed.2d 275 (1968), a 1967 case involving a Colorado teacher's oath. There, the oath simply required teachers to swear to support the federal and state constitutions "and the laws of the State of Colorado and of the United States," id. at 878, an oath not very different than our New Jersey oath. The three-judge District Court panel ruled that the oath was not unconstitutionally vague. In fact, the court stated that the oath was "plain, straight-forward and unequivocal. A person taking it is not left in doubt as to his undertaking. The obligation assumed is one of simple recognition that ours is a government of laws and not of men." Ibid. The court also found that the oath did not curtail expression. "Recognition of and respect for law in no way prevents the right to dissent and question repugnant laws. Nor does it limit the right to seek
through lawful means the repeal or amendment of state or federal
laws with which the oath taker is in disagreement." Id. at 879.
In comparing the Colorado oath in Hosack with the oath
challenged here on this appeal, appellant argues that the "laws"
are not the "Government." "The laws are part of the Government,
but the Government is a much broader term, encompasses
institutions, people, individuals. And to say that one bears true
faith and allegiance to the Government, entails a lot more than
just saying, one believes in Constitutional processes of
Government, and one has respect for law. The Government embraces
much more than either the Constitution [or] the laws."
Our research does not reveal a teacher's oath close to or
identical with New Jersey's. However, in Socialist Workers Party
v. Martin,
345 F. Supp. 1132 (S.D. Tex. 1972), aff'd,
483 F.2d 554
(5th Cir. 1973), the three-judge court invalidated portions of an
oath required for candidates for public office. There, the oath
required candidates to:
[S]wear that I believe in and approve of our
present representative form of government,
and, if elected, I will support and defend our
present representative form of government and
will resist any effort or movement from any
source which seeks to subvert or destroy the
same or any part thereof, and I will support
and defend the Constitution and laws of the
United States and of the State of Texas.
[Id. at 1134.]
The court first found that the constitutionality of the last clause, "support and defend the Constitution and laws" ... "cannot seriously be questioned." However, the court found that "requiring
a candidate to `believe in and approve of our present
representative form of government' creates a chilling effect on
political beliefs and ideas ...." Ibid. The court struck that
portion of the oath, but left the "support and defend the
Constitution and laws" clause intact. Id. at 1138.
Our assessment of these authorities leads us to affirm Judge
Ferren's decision that New Jersey's present statutory loyalty oath
does not violate appellant's expressional constitutional rights.
Our oath simply requires that he "support the Constitution[s] of
the United States and of ... the State of New Jersey, ... and ...
bear true faith and allegiance to the same and to the Governments
established in the United States and in this State, under the
authority of the people." N.J.S.A. 41:1-1. Nothing more is
required. There are no ensnaring qualifications of any of the
political or personal freedoms granted in the Bills of Rights in
either our State or the federal constitution. The very
constitutions and governments to which he swears allegiance under
the authority of the people are bound by positive law to respect
and preserve the personal and political liberties which appellant
fears are impugned by the oath. His dilemma is much more personal
than realistic, although we cannot dismiss it as idle or
chimerical.
We are satisfied that the oath here is very much like the
Colorado oath: "I solemnly swear or affirm that I will support the
Constitution of the State of Colorado and of the United States of
America and the laws of the State of Colorado of the United
States," which passed constitutional muster and was upheld by a
summary affirmance of the three-judge panel in Hosack v. Smiley,
supra. Summary affirmances by the United States Supreme Court are
recognized as precedential on the merits. See Mandel v. Bradley,
432 U.S. 173, 176,
97 S.Ct. 2238, 2240,
53 L.Ed.2d 199, 204 (1977);
Hicks v. Miranda,
422 U.S. 332, 344,
95 S.Ct. 2281, 2289,
45 L.Ed.2d 223, 236 (1975) (lower courts are bound by summary
affirmances until the Supreme Court informs them they are not).
Like the Colorado oath, our New Jersey oath is "plain,
straight-forward and unequivocal." Hosack, supra, 276 F. Supp. at
878. "A person is not left in doubt as to his undertaking." Ibid.
The affiant simply "recognizes that ours is a government of laws
and not of men." Ibid. We also agree with Hosack that
Recognition of and respect for law in no way
prevents the right to dissent and question
repugnant laws. Nor does it limit the right to
seek through lawful means the repeal or amendment
of state or federal laws with which the oath taker
is in disagreement. Support for the constitutions
and laws of the nation and state does not call for
blind subservience. Such an extreme concept is not
now nor has it ever been accepted.
[Hosack v. Smiley, supra, 276 F. Supp. at
879].
McKay v. Rafferty, supra, 321 F. Supp. 1177, is not here controlling. There the California teacher's oath of allegiance was more generally expressed and thus much more suspect, requiring the affiant to "promote respect for the flag and ... respect for law and order.... Before starting to teach, an affiant also had further to "subscribe to an oath to support the institutions and
policies of the United States during the period of his sojourn
within the state." Id. at 1177 fn. 1 (emphasis supplied). The
California statute also required that "upon the violation of any
terms of the oath or affirmation, the State Board of Education
shall suspend or revoke the credential which has been issued." The
three-judge federal district court in California found the oath and
loyalty scheme were "essentially indistinguishable from the one
declared unconstitutional in Baggett v. Bullitt,
377 U.S. 360,
12 L.Ed.2d 3777 (1964)." Id. We find that New Jersey's oath does not
approach that invidious character.
Our federal constitution has "fashioned the principle that the
constitutional guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy of the use of force
or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to
incite or produce such action." Brandenburg v. Ohio,
395 U.S. 444,
447,
89 S.Ct. 1827, 1829,
23 L.Ed.2d 430, 434 (1969). "Mere
advocacy," as "distinguished from incitement to imminent lawless
action," is always constitutionally protected. Id. at 448-49, 23
L.Ed.
2d at 434. See also Hess v. Indiana,
414 U.S. 105,
94 S.Ct. 326,
38 L.Ed.2d 303 (1973); Communist Party of Indiana v. Whitcomb,
414 U.S. 441
94 S.Ct. 656,
38 L.Ed.2d 635 (1974) (loyalty oath as
condition of ballot access held unconstitutional); Kingsley
International Pictures Corp. v. Regents,
360 U.S. 684, 689,
79 S.Ct. 1362, 1366,
3 L.Ed.2d 1512, ___, (1959) (license to film
conditioned on "sexually moral" ideas improperly denied); Laurence
H. Tribe, American Constitutional Law, § 12-9 at 848 (2d ed. 1988).
In light of these and numerous similar constitutional
authorities, appellant's right to speak and dissent is fully
protected by law. The New Jersey teacher's loyalty oath does not
diminish these rights. The oath simply declares allegiance to the
State and Federal governments, which are compelled by their
fundamental documents to assure appellant's expressional rights.
We consider unrealistic the threat of such criminal
prosecutions for perjury postulated by appellant given the holdings
in Brandenburg and Hess, supra. Regarding possible prosecutions,
or indeed persecutions, for perjury we recall the comments of the
Supreme Court in Cole v. Richardson,
Those who view the Massachusetts oath in
terms of an endless "parade of horribles"
would do well to bear in mind that many of the
hazards of human existence that can be
imagined are circumscribed by the classic
observation of Mr. Justice Holmes, when
confronted with the prophecy of dire
consequences of certain judicial action, that
it would not occur "while this Court sits."
(citations omitted)
[405 U.S. at 686-87, 92 S.Ct. at 1332, 31
L.Ed.
2d at 603.]
Appellant's concern about the oath of allegiance to "governments" should be assuaged by the final, conditioning clause "under the authority of the people." The "allegiance" clause simply makes clear the application of the requirement to support the several constitutions established under the authority of the
people. This oath goes back to September 19, 1776. It predates
most of the Revolutionary War and our federal constitution. It has
survived a lengthy time period and many political tides.
We uphold the statutory oath and affirm the judgment of the
Law Division.
Footnote: 1N.J.S.A. 18A:6-7 states:
Every person who is a citizen of the
United States, and who is employed as a
professor, instructor, teacher or in any
teaching capacity by or in any school,
college, state college, university or other
educational institution in this state which is
supported in whole or in part by public funds,
directly or through contract or otherwise with
or on behalf of the state shall, before
entering into the discharge of his duties,
take and subscribe to the oath of allegiance
and office prescribed in section 41:1-3 of the
Revised Statutes, and any person who is a
citizen or subject of any other country and
who is so employed, shall, likewise, take and
subscribe to an oath to support the
constitution of the United States while so
employed, a copy of which oath shall be filed
with his said employer.
Footnote: 2N.J.S.A. 18A:26-9 states:
No certificate to teach or supervise in any of the public schools of this state, and no renewal of any such certificate, shall be issued to any applicant unless such applicant shall have first subscribed in duplicate to the oath of allegiance and office prescribed
in section 41:1-3 of the Revised Statutes
before an officer authorized by law to
administer oaths or before a county
superintendent or the president or secretary
of a board of education of this state and
until one copy thereof shall have been filed
with the county superintendent and by him
transmitted to the commissioner. The other
copy of such oath shall be delivered to the
applicant and by him to the board, body or
person employing such applicant within this
state.
Footnote: 3N.J.S.A. 41:1-1 states:
Every person who is or shall be required
by law to give assurance of fidelity and
attachment to the Government of this State
shall take the following oath of allegiance:
I, ......, do solemnly swear (or affirm) that
I will support the Constitution of the United
States and the Constitution of the State of
New Jersey, and that I will bear true faith
and allegiance to the same and to the
Governments established in the United States
and in this State, under the authority of the
people. *So help me God. (* Not mandatory).
Footnote: 4N.J.S.A. 41:1-3 states:
Every person who shall be elected, or appointed to any public office in this State or in any county, municipality or special district other than a municipality therein, or in any department, board, commission, agency or instrumentality of any thereof, and is required to take and subscribe an oath of office shall, before he enters upon the execution of his said office take and subscribe the oath of allegiance set forth in
R.S. 41:1-1 and, in addition, (a) any
specially prescribed official oath, or (b) if
no text is specially prescribed for such oath
of office, the following official oath of
office:
"I, .......... do solemnly swear (or
affirm) that I will faithfully, impartially
and justly perform all the duties of the
office of .......... according to the best of
my ability. So help me God."
Footnote: 5Appellant's complaint also alleges in part:
The present New Jersey Affirmation/Oath of
Allegiance conflicts with another New Jersey
teaching application form that requires
applicants to answer yes or no to the
question: "Are you now or have you ever been a
member of any party or organization, political
or otherwise, that now or has advocated the
overthrow of the Government of the United
States or the State of New Jersey by force of
violence or unlawful means? If your answer is
yes, please list the party or organization.'
The applicants must subscribe to a statement:
"I affirm the information on this form is
accurate and correct." Applicants complete
these application forms under the reasonable
belief that a failure to answer "no" will
result in deprivation of employment,
profession or means of livelihood. The
inclusion of this question in the New Jersey
teachers' application forms is an attempt to
circumvent the deletion of such a provision,
by the courts and by the legislature, from the
1949 [] Oath of Allegiance.
This contention has not been specifically presented to us on this appeal. Appellant did not pursue this point in his brief or oral argument before this court. The State does not pursue the issue. The Law Division judge did not rule on the validity of such an application question, or whether such an answer is actually reuired, as appellant urges, or how the responses are administered, if required. Accordingly, it is inappropriate for us to speculate if its utilization, as applied, might run afoul of the ruling in
Elfbrandt or the New Jersey legislative policy reflected in the deletion of the 1949 amendment to N.J.S.A. 41:1-1, -3 in 1971. There is no provision in the State Administrative Code for a uniform application form for teachers or substitutes.