“A Pall of Orthodoxy”: The Painful Persistence of Loyalty Oaths

Who could object to Ohio’s anti-terrorist oath? Created as part of the 2006 “Ohio Patriot Act,” it merely requires every new public employee to answer “no” to six questions regarding affiliation with, or “material support” to, any organization on the U.S. State Department’s “Terrorist Exclusion List.” The oath also applies to anybody who has state or city contracts worth more than $100,000 in a given year.

Beneath the uncontroversial veneer of this anti-terrorist measure, however, is a reincarnation of the “test oath” that has long been used by governments to coerce their subjects into religious or political conformity. When Ohio attorney Marc Triplett, who contracts with the state to represent indigent defendants, was confronted with the oath in 2006, he secured the help of the American Civil Liberties Union and filed a legal challenge.

Test oaths operate by reversing the usual presumptions of law. That is, as Supreme Court Justice William O. Douglas explained in a cold war-era case involving anticommunist oaths, they “place the burden of proving loyalty on the citizen,” whereas our constitutional system presumes every person innocent “until guilt is established.” Douglas quoted Alexander Hamilton’s argument that it would be an obvious infringement of the Constitution if, “instead of the mode of indictment and trial by jury,” the legislature were simply to declare “that every citizen who did not swear he had never adhered to the King of Great Britain, should incur all the penalties which our treason laws prescribe.”

The vice of test oaths, then, is that if a person, for whatever reason, fails to swear innocence, he or she is presumed guilty (those who resisted loyalty oaths in the early 1950s suffered a variety of penalties, including job loss and the right to live in public housing). In Ohio’s case, a blank, or “yes,” answer to any of the anti-terrorist oath’s six questions about organizational affiliations or material support is a disqualification from public employment, from a contract with a city or state agency, and in some cases from a license to practice a trade. This is perhaps why the American Association of University Professors calls Ohio’s certification “the most egregious” requirement currently imposed on any public employee or contractor.

A law-abiding Ohioan could well be confused by the questions. For example, how does the State Department choose what organizations to place on its list, and do these groups have any chance to contest their listings? Terrorism is a scary word, but the government’s definition is a broad one: any group that either commits, attempts, or conspires to commit any unlawful act involving, among other things, the use of a weapon with the intent to endanger human safety or damage property. Today’s terrorists, certainly under this expansive definition and even under a narrower one, could be tomorrow’s legitimate gover...