A Jehovah’s Witness who was fired from her position when she refused to take California’s loyalty oath because her primary allegiance was to her God, rather than the government, will get another chance to amend her claims against the State.

A unanimous opinion by a three-justice panel from the Ninth Circuit Court of Appeal, authored by Circuit Justice Michelle T. Freeland, reversed the decision of John A. Mendez, Presiding District Judge of the United States District Court for the Eastern District of California on April 3. The Ninth Circuit ruled that appellant’s claims could be amended under the Free Exercise Clauses of both the state and federal constitutions.

Brianna Bolden-Hardge, a devout Jehovah’s Witness, sued Malia M. Cohen, the California State Controller, and her office, for refusing to allow her to amend the loyalty oath that all public employees are required to take under the State constitution. Justice Freeland acknowledged that Bolden-Hardge might not ultimately prevail, but said it was too early to dismiss her claims by granting Cohen’s motion to dismiss.

Appellant began working for the California Franchise Tax Board in 2016. She was not required to take the State’s loyalty oath when she began her new job. The following year, she was offered a better and higher-paying position, which did compel her to take the oath required by the California Constitution. The oath said that all public employees, “…except those as may be by law exempted… (must) swear to support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic… and to…bear true faith and allegiance” to those constitutions.”

Bolden-Hardge said her faith would now allow her to “swear primary allegiance to any human government” over the “Kingdom of God,” and she said she would not engage in any military activity to defend either the State or federal government. She requested that the State approve an addendum that explained that while her primary allegiance was to God, she would uphold both Constitutions, be “honest and fair in her dealings and neither dishonor the Office by word or deed.” When her addendum was rejected by the Controller’s Office, their job offer was withdrawn and she returned to her lower-paying position. This time, she was required to take the loyalty oath, but the Franchise Tax Board allowed her addendum.

She sued the Controller’s Office in State and federal court, claiming the loyalty oath violated Title VII of the 1964 Civil Rights Act, which protects employees from employment discrimination based on their race, color, religion, sex and national origin. She argued that the government “failed to accommodate” her religion, which is required under the California Fair Housing and Employment Act (FEHA). She also argued that the government’s actions had a “disparate impact,” which might appear to be non-discriminatory, but actually has a “disproportionately negative effect” on religious groups. She sought damages. The district court dismissed all her claims because her arguments were legal, not factual.

The opinion began by explaining that appellant could have standing even though she was no longer seeking the higher-paying job as long as she amended her complaint to say she might seek it in the future. Her claims for damages under FEHA and Title VII, but not the Free Exercise Clauses, would also be valid if she amended her complaint to sue the State Controller in her individual capacity.

Justice Freeland then turned to appellant’s claims under FEHA and Title VII, explaining that she met the requirements of having a “bona fide religious belief” and an “honest conviction.” She cautioned that precedent, including cases from the U.S. Supreme Court, warns against “second-guessing the reasonableness” of a person’s religious beliefs.

The opinion then discussed whether the Controller was justified in not accommodating Bolden-Hardge’s religious beliefs, because doing so “would violate the California Constitution.” The Ninth Circuit found this potential violation was unpersuasive because there was “no indication of an actual threat of enforcement or liability for violating a state law.” There was “no undue hardship” or foreseeable “legal consequences.” The Circuit Court also agreed with appellant that the state’s requirement of statistical proof to support her claim was not required because, when, as in this case, the impact is “obvious.”

In addition, Freeland failed to see proof that, at this early stage in the proceedings, the loyalty oath was a “business necessity.” She said “this assertion may well prove true” at a later stage, but she “cannot affirm dismissal at this stage based on business necessity grounds.”

The separation of church and state is complex, and recent events in the news and the courts magnify the difficulties presented by this constitutional requirement. For now, Bolden-Hardge will have another chance to maintain that separation.