The Freedom From Religion Foundation has become a party to a legal challenge of the religious Pledge of Allegiance taken by David Habecker, the trustee of the town of Estes Park, Colo., who was recalled from office this spring for failing to recite it.
The federal lawsuit seeks to have the Pledge of Allegiance declared an unconstitutional establishment of religion in violation of the First Amendment.
In May, an amended brief was filed adding the Foundation to the lawsuit, which is being represented by Robert R. Tiernan, a Foundation member and attorney who has brought several Foundation lawsuits.
The lawsuit names as defendants the Town of Estes Park, its six trustees, and other officials who administered the recall.
Habecker, who has lived with his wife in Estes Park since 1977, once served as an elder in a Presbyterian church and a trustee in a Methodist church, but today considers himself an agnostic. He has a successful building design practice, and is active in the community. He has served as a town trustee from 1984-1988, and since 2000, when he was elected to fill a vacancy. He was reelected for a four-year term in 2002, which would have expired in 2006, had he not been recalled in April.
The complaint notes that the board of trustees only began formally opening meetings with the Pledge of Allegiance in May 2004, at the mayor’s instigation. At the first such recitation, Habecker, taken off-guard, stood and recited the pledge, omitting the phrase under God.”
“During the course of the next several meetings, Plaintiff became more and more uncomfortable with the ritual,” the complaint observes. “He is opposed to the phrase ‘under God’ not only because it violates his religious convictions, but also because he conscientiously believes the phrase is at odds with our constitutional system of secular government. Plaintiff also believes the pledge is a religious oath which he should not be required to participate in or recite. He therefore decided to stay seated and refrain from saying the pledge at the September 14, 2004, meeting. Plaintiff showed no disrespect. He simply sat passively until the pledge had been recited.”
When town trustee Lori Jeffrey-Clark observed Habecker failing to stand and recite the pledge at a subsequent meeting, she publicly accused Habecker of being unpatriotic, saying, “I want my vote back.”
With trustees Dewey Shanks and Norman D. Pritchard, she then formed the Recall Committee. The statement of grounds in their petition read:
“Electors suffer loss of confidence in Mr. Habecker’s ability to represent citizen’s pride, patriotism, and common decency. Prior to Town Board of Trustees meetings, he purposefully and irreverently chooses to publicly sit, facing away from the flag of the United States, during recital of the Pledge of Allegiance. His defiant behavior occurs because the phrase ‘. . . under God . . .’ offends him. He states he intends to continue until the United States Congress strikes the phrase from the Pledge of Allegiance. Habecker failed to reveal this violation of his principles during campaigns for election. We consider this omission a deliberate tactic to assure voter ballots towards his election. We consider this tactic unethical and unacceptable. We respect Mr. Habecker’s right to free speech under the Constitution of the United States, but insist on maintenance of responsibility, accountability, leadership, respect for others, and high standards of public conduct. His vital beliefs regarding church/state personal conflicts were not revealed at the critical time of election. We do not regard these actions, omissions or motivations honorable, and demand his removal from his elected position.”
The lawsuit notes that the statement of grounds for the recall is false. Habecker did not face away from the U.S. flag. He also points out the pledge was not an issue during his 2002 campaign. It only surfaced when the mayor began starting meetings with the pledge in 2004.
After the recall petition was certified, a recall election was scheduled for Feb. 14, 2005. Habecker went to court seeking to disqualify the recall. On Feb. 10, a federal judge issued a preliminary injunction barring the Feb. 15 election, but dissolved that injunction on March 2. Town attorney Greg White advised the board it could hold the recall on either March 22 or March 29, even though those dates were more than 90 days after the submission of the recall petition. Habecker was recalled from office on March 22.
Habecker and the Foundation also seek a cease and desist order barring the board of trustees from reciting the pledge during the conduct of official business.
Habecker will speak at the upcoming national convention of the Freedom From Religion Foundation, meeting in Orlando on the weekend of Nov. 11-13, where he will be receiving an award.
