Habecker Appeal Heard in September: Robert R. Tiernan

Below is the oral argument which attorney Robert R. Tiernan presented to the 10th U.S. Circuit Court of Appeals, seeking to reinstate a lawsuit by Dave Habecker challenging his recall from public office because he did not recite the religious Pledge of Allegiance. The case was thrown out of court in 2006 on standing, with the judge declaring it moot since Habecker had been removed from office.

By Robert R. Tiernan

In Estes Park, Colo., if you don’t follow the prescribed ritual by standing, putting your hand to your heart, and reciting in haec verba that this is a nation under God, you can’t hold public office. This is wrong. The federal government should not be allowed to write oaths or pledges which facilitate this kind of result.

This case so far has focused primarily on procedural issues such as standing, mootness, and the like. That has been essentially a mirage calculated to avoid the basic issue here, which is the disenfranchisement of those who are nonbelievers and have the courage to stand up for it.

Not so many years ago, it would have been unspeakable to suggest that an openly gay person hold public office. Before that, it was a divorced person. Before that, women, and before that, Negroes. Those discriminations have been eliminated. It is time to eliminate the discrimination against atheists, and it doesn’t take a constitutional amendment to ensure freedom from religion and eligibility of atheists to hold public office.

Colorado law provides that a public official can be recalled for any reason or no reason at all. The question before this Court is whether the voters in Estes Park, Colo., have the power to override the protections guaranteed by the U.S. Constitution and the Bill of Rights and, equally important, whether a government oath which prescribes the phrase “under God” has any place in our society and, particularly, at formal government functions.

David Habecker was a trustee of Estes Park, Colo., for some 13 years. He was elected to the office four times and was held in high regard by his constituents. His competence or honesty has never been questioned, even in this case. That is, until he refused to recite the Pledge of Allegiance at board of trustee meetings. That practice was commenced by the other Trustees, shortly before Mr. Habecker’s recall.

Mr. Habecker sat out the pledge because he is an atheist and the phrase “under God” in the pledge violates his deeply-held convictions. He did stand and pretend to recite the pledge a couple of times, but he refused to continue being a hypocrite. So, he began sitting the pledge out.

Mr. Habecker was recalled only because he refused to recite the pledge. The record is absolutely clear on this.

Despite this, the trial judge ruled that it was not the pledge that caused Mr. Habecker’s recall–it was the voters. But, without the pledge, there would have been no recall. One cannot be separated from the other. The trial court’s logic is like what we used to say in the Airborne. If your chute doesn’t open, it’s not the fall the kills you, it’s hitting the ground.

The trial judge ruled that this case is moot. This is absurd. There are any number of legal arguments set forth in our brief on this issue, but the deep-seated underlying question is–how can this case possibly be moot? Mr. Habecker lost his public office because he is an atheist. He is entitled to redress of his grievances.

Mr. Habecker is gone from the Board of Trustees but the pledge goes on. There may be other members of the Board and, undoubtedly, there will be future Board members who find the pledge unconscionable. So, as long as the Court allows this practice to continue, it is a threat to any atheist, agnostic, or even a religious person who is not a monotheist. It should be stopped.

If the Court orders relief here it will not have to open what it may consider Pandora’s box. The Court can choose to limit relief to enjoining recitation of the pledge at official government meetings. Although we believe the pledge is facially constitutional, it certainly is so on an applied basis given the facts here.

You’re going to hear the government say that “under God” in the pledge does not create constitutional issues because it is merely part of a patriotic ritual whose purpose is not to endorse or promote religion. But please remember this. The Pledge of Allegiance had existed for decades before the phrase “under God” was added in the mid-1950s. Adding “under God” to the pledge violates the Lemon test because it had absolutely no secular purpose. Its only purpose was to inject religion into the pledge and thereby exclude atheists, making them outsiders. This had nothing to do with patriotism. It had everything to do with religion.

We ask the Court to declare the pledge unconstitutional at least in the setting involved and to enjoin the Town of Estes Park from reciting the pledge at Town meetings.

Thank you.

Freedom From Religion Foundation