Habecker to Appeal Pledge Lawsuit: David Hebecker

Foundation member David Habecker and the Freedom From Religion Foundation lost their challenge in district court this fall of David’s recall from public office for failure to recite the religious Pledge of Allegiance, with the court finding that neither David nor the Foundation had standing to sue.

David, with the aid of attorney Robert R. Tiernan, will be appealing the decision to the 10th U.S. Circuit Court of Appeals, although the Foundation has dropped out of the case. David Habecker received a Freethought Hero award at the 2005 national convention of the Freedom From Religion Foundation. 

Below is David’s public statement.

By David Habecker

My lawsuit against the Town of Estes Park, Colo., and others concerning my recall was dismissed by U.S. District Court Judge Edward Nottingham, who said: “this court declines to reach the underlying merits of the parties’ positions and decides the case on technical . . . doctrines.”

Surprisingly, I do not have standing to challenge the Pledge of Allegiance, because the pledge itself did not cause my recall; even though the main reason listed on the recall ballot was my refusal to stand for the pledge.

If our mayor had said, “All those who believe we are a nation under God, please stand up,” could I have been recalled if I didn’t? In my eyes, this is exactly what happened. I was recalled from office for refusing to recite the pledge based on my religious beliefs, which made the pledge a religious test, not a test of qualification for office.

Citing another case, the judge quotes, “At its core, the Establishment Clause enshrines the principle that government may not act in ways that ‘aid one religion, aid all religions, or prefer one religion over another.’ ” Am I missing something, or doesn’t adding God to the pledge aid religion?

Ah, but now the judge cites other decisions that explain the government’s position that “the pledge is a patriotic utterance, not a religious one.” Of course this can only be true if ‘God’ has no religious meaning as used in the pledge. And yes, they confirm this position when the judge quotes from Myers v. Loudon County Public Schools: ” . . . and it is demeaning to persons of faith to assert that the words ‘under God’ contain no religious significance . . . ” The government’s claim that the inclusion of the words “under God” does not alter the nature of the pledge as a patriotic activity is a lie which insults common sense and fair play.

The government argues that ‘under God’ is a form of ‘ceremonial deism’ and has nothing to do with religion. Could we not also add ‘under white men’? It would be historically correct, and would be a form of ‘ceremonial patriarchy’ or ‘ceremonial racism’! No harm done? The only difference between adding ‘under God’ or ‘under white men’ is the number of people who would be offended.

My First Amendment right to freedom of religion, or correctly, from religion, was violated. I did not expose my religious beliefs freely, I was forced to reveal them, and was then recalled, (punished), for them.

Judge Nottingham was also “struck by (my) failure to mention the effect that (my) reinstallation would have on the voting public or the elected individual who would be removed from office to allow (me) to reclaim (my) seat on the board.” My reply would be as follows:

1. The voters would have learned that there are constitutional limits to their desires. Some may have started another recall, but for a legitimate reason.

2. My replacement, Mr. Homier, would have stayed on the planning commission and continued with his business.

3. The town government would have continued operating.

4. Everyone’s freedoms would have been left intact.

Richard J. Ellis, in his book, To the Flag: The Unlikely History of the Pledge of Allegiance, ends with the following:

“Backers of the pledge are often cast as true patriots, but it is arguably those who would dispense with a daily pledge who are the ones who harbor the greatest faith in the enduring power and strength of American institutions and American ideas. Perhaps this is the true paradox of the Pledge of Allegiance.”

Until the merits of my case, including the “under God” clause in the pledge, have been given a proper hearing, I have no choice but to appeal Judge Nottingham’s decision.

Freedom From Religion Foundation