The Supreme Court agreed last Monday to hear the second case of Thelma Gerende. Thelma Gerende is a Progressive living in Maryland who likes to run for public offices but does not like to sign the loyalty oaths required under Maryland's Ober Law. She ran for Congress last November and the state Court of Appeals upheld her right to appear on the ballot without signing the oath. But her attempt to run for the Baltimore City Council this year has been unsuccessful and she was not on the ballot in yesterday's primary election.
The history of Maryland's oath requirement goes back to November, 1948, when the state constitution was amended to bar from office any "member of an organization that advocates overthrow of the United States or Maryland through force and violence." To implement this amendment, a commission appointed by the Maryland Senate and headed by Frank B. Ober--a Harvard Law School graduate--drew up a bill designed to keep "subversives" out of the government. (Ober was also busy attacking Harvard at this time for tolerating the political views of some of its faculty members).
The measure, as passed into law in March, 1949, provided stiff fines and prison sentences for people who advocated or taught "alteration," of our form of government or "belonged to a subversive organization, knowing it to be subversive." In addition, it prescribed loyalty oaths for all public school teachers and candidates for public offices, and made "reasonable grounds . . . to believe that any person is a subversive person" sufficient basis for denying him employment in public agencies.
The first test case under the bill came up in August, 1949, over the firing of some state employees who refused to sign the new loyalty oaths. Judge Joseph Sherbow, deciding for the employees, denounced the Ober Law in violent terms:
"(The law) violates the basic freedoms guaranteed by the first and fourteenth amendments, and due process under the fifth amendment. It violates the Maryland constitution and Declaration of Rights, it is an unlawful bill of attainder, and is too general for a penal statute." However, the Maryland Court of Appeals, in a four to one decision, overruled Sherbow's issuance of an injunction against the law. The court did not rule on the constitutional aspects, but made its decision on the grounds that the complainants were not materially affected by the law.
The first Gerende case arrived at the Maryland Court of Appeals in October. She and Louis Shub, Progressive candidate for Governor, had both refused to sign the oath. The Court decided that Miss Gerende, as a candidate for Federal office, should not be required to sign; but it ruled that the oath could not be waived in the case of Mr. Shub. Shub accordingly carried his complaint up to the Supreme Court later in the month, but the Supreme Court decided by six to three not to expedite his case. This moved it up beyond the November 8 election date and rendered the question academic.
In the November election, the Maryland electorate gave the Ober Law an overwhelming vote of confidence in a state-wide referendum. Now the Supreme Court will get a chance at the legal aspects of the Ober oath requirements, which are typical of the loyalty provisions--passed and projected--that have innundated the country in the past few years.