State’s loyalty oath still on books 50 years after ruling struck it down

OLYMPIA, Wash. — It has been just shy of 50 years since the U.S. Supreme Court ruled that a Washington state law barring members of the Communist Party from voting or holding public-sector jobs is unconstitutional.

Evidently, that is not enough time to remove it from the books.

Washington is one of a handful of states with similar laws still in existence despite their having been declared unconstitutional decades ago.

With few exceptions — most notably Georgia, where an anti-communist oath was administered to incoming Dunwoody City Councilmembers as recently as last year — the laws are treated as part of a bygone era, not unlike state statutes prohibiting interracial marriage, the last of which was removed from Alabama’s books in 2001 even though the Supreme Court ruled them unconstitutional in 1967.

Rep. Joe Fitzgibbon, D-Burien, first introduced a measure to repeal Washington state’s anachronistic anti-subversives law last year, figuring, he says, that it would be an unceremonious end to a dead-letter statute originating from a dark period in our nation’s history.

He was wrong. Though his bill passed out of the House Judiciary Committee, it did so on a party-line vote, with four Republicans opposed.

With only so much political capital to expend on contentious legislation, House Democratic leaders declined to move it forward, and it never made it to the floor for a vote.

This year, Fitzgibbon lowered his sights, introducing House Bill 1062 with the understanding that it likely would not even get out of committee.

By the end of Friday, as a key deadline for policy-related bills passed without the bill coming up for a committee vote, that understanding was confirmed.

“There are some (Democratic lawmakers) that think this is a bad political issue for us, but I really don’t,” he said. “I don’t think there is a lot of fear in our state these days about the prospects of a communist takeover.”

That may be, but several decades removed from the Red Scare, any suggestion of kowtowing to communists can still inflame passions.

After Fitzgibbon spoke in favor of the bill in the House Judiciary Committee earlier this month, Rep. Matt Shea, a conservative Republican from Spokane Valley, was ready with a sharp rejoinder.

“For the large Ukrainian, Russian, North Korean and Chinese populations in the state who fled communism — including my wife, whose father was arrested by the KGB, who suffered horrible persecution, whose friends were sent to the gulag in Russia — do you see this as a little bit of a slap in the face to them that communism is not subversive?”

Responded Fitzgibbon: “I don’t believe we persecute people based on their political beliefs in Washington state, and I would say that applies to communists as well as anybody else.”

In addition to Washington state and Georgia, Pennsylvania and California have laws requiring state workers to take an oath swearing they are not subversives or members of a group dedicated to overthrowing the government. At least five other states — Connecticut and Virginia among them — have laws prohibiting subversives from working in emergency management. Illinois has a statute barring communists from seeking elected office.

Thanks to a series of 1960s U.S. Supreme Court rulings that found them to be unconstitutional, those laws have long been all-but unenforceable.

The ruling that struck down Washington state’s statute on subversive activities, handed down in 1964, found that the definition of a subversive group was too vague.

Three years later, the Supreme Court ruled that Eugene Frank Robel, a worker at the Todd Shipyard in Seattle, had been wrongly fired from his job building warships over his membership in the Communist Party.

“Robel put the nail in the coffin” for laws limiting communists from public-sector jobs, says University of Washington Law Professor Stewart Jay. “If you can’t fire (a communist) working in national defense, what can you do?”

But while the Supreme Court struck down loyalty oaths that predicate public-sector employment on a lack of affiliation with a subversive group, it has upheld less-expansive pledges to defend the United States from its enemies and uphold the Constitution.

Including those that also have anti-subversives oaths, at least 13 states have such laws on their books, including Florida, Tennessee and Arizona.

In California, Marianne Kearney-Brown, a math instructor at California State University East Bay who refused to take such an oath as a Quaker and a pacifist was fired from her post in 2008 before swiftly being reinstated and assured that she would not be forced to take up arms.

Periodically, a lawmaker seeking to stem the perceived tide of cultural decline will propose a new loyalty oath. Last month, a Republican state lawmaker in Arizona, Rep. Bob Thorpe, proposed legislation requiring high school students to swear an oath defending the Constitution before being allowed to graduate. That measure, House Bill 2467, is pending.

In general, though, such efforts are on the wane — a state of affairs not lost on communists themselves.

“It’s a good thing to get rid of these laws,” says Libero Della Piana, vice chairman of the Communist Party USA. “But the reality is that people are more worried about foreclosures on their houses than subversives in student government.”

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