Recall for Nonbelief Unconstitutional

The Pledge had the effect of allowing Peeping Toms” like the Non-Town Defendants to ferret out nonbelievers and then retaliate against them.

In The United States District Court For The District Of Colorado
Civil Action No. 05-CV-00153
David Habecker and The Freedom From Religion Foundation, Inc.,
Town of Estes Park, Colorado; et al.,

Excerpt of Plaintiffs’ Motion For Summary Judgment

Introductory Statement

The record in this case shows that David Habecker was recalled from public office for one reason only–because he refused to recite the Pledge of Allegiance. The September 28, 2004, meeting of the Estes Park Board of Trustees at which the issue of a recall first came up, the Statement of Grounds in the recall petition, and all the discovery in this case lead to this inescapable conclusion. There was no allegation of incompetence, ineffectiveness, or any reason given for the recall other than Habecker’s declining to say the Pledge.

The record also shows that Habecker declined to recite the Pledge because it contradicts his religious convictions. Habecker does not believe in God and, therefore, could not state an oath that this is a nation under God. “Under God” in the Pledge of Allegiance is an endorsement of religion by government in violation of the Establishment Clause. Subjecting Habecker to recall for refusing to recite the Pledge was a denial of his constitutional right to religious freedom, which the Supreme Court has repeatedly said includes freedom from religion. It also imposed upon Habecker the requirement to subscribe to a loyalty oath to God in derogation of the Constitutional provision which prohibits a religious test for public office.

If the Court does not step in and redress this injustice, it is very likely to be the first of many recalls based on religious grounds. The door will be opened to a purge of public officials who do not believe in a divinity or that this is a nation subservient to a divinity. It will harken back to the days when Negroes were denied the right to hold public office, except that now it will be court-sanctioned segregation on account of religion rather than race. This bigotry must be stopped before it gains a foothold.


The following facts are set forth in the Scheduling Order entered on May 10, 2005, and are, therefore, not in dispute. On the basis of these facts and the deposition of Plaintiff Habecker, cited below, this case is ripe for summary judgment.

In 1984, Plaintiff was first elected to a four-year term to the office of Town Trustee of the Town of Estes Park. He was re-elected to another four-year term in 1988. In 2000, he was elected to fill the vacancy of a deceased Trustee, and he was elected to another four-year term in 2002. Prior to the recall election, his term would have expired in April 2006.

There are six Town Trustees, plus the Mayor, which form the Board of Trustees. . . .

The Board conducts formal meetings twice a month, and it is the duty of each Trustee to attend meetings. Meetings are open to the public. At the May 11, 2004, meeting, the Mayor announced a new policy of formally opening meetings with the Pledge of Allegiance. Plaintiff stood and pretended to say the Pledge on May 11 and on several subsequent meetings. However, he felt like a hypocrite and, at the September 14, 2004, Board meeting, Plaintiff remained seated and refrained from saying the Pledge.

Lori Jeffrey-Clark is a Town Trustee. At the Board meeting on September 28, 2004, she put enlarged copies of currency [containing the motto “In God We Trust”] before each Trustee’s place on the bench. A group of Webelo Scouts attended that meeting. Ms. Jeffrey-Clark noted her dismay in Habecker’s position concerning not participating in reciting the Pledge of Allegiance.

Defendants Shanks, Pritchard, and Clark formed a committee to recall Plaintiff. The statement of grounds in their recall petition stated as follows:

“Electors suffer loss of confidence in Mr. Habecker’s ability to represent citizens’ 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.”

Defendant Town Clerk Vickie O’Connor certified the Recall Petition as sufficient. The Petition was submitted to the Board of Trustees at its December 14, 2004, meeting, and the Board set February 15, 2005, as the date for the recall election.

On February 10, 2005, the Court issued a preliminary injunction which prevented the election from being held on February 15.

On March 2, 2005, the preliminary injunction was dissolved by the Court.

At the March 8, 2005, meeting of the Board, Town Attorney Greg White advised the Board that it could hold the recall election on either March 22 or March 29, even though those dates were more than 90 days after the submission of the recall petition to the Board. The Board voted to hold the recall election on March 22, 2005. The vote of the Board on this issue was unanimous except for the negative vote of Plaintiff.

The recall election was held on March 22, 2005. As a result, Plaintiff Habecker lost his seat on the Board of Trustees. A total of 1,508 votes were cast, of which 903 voted in favor of the recall and 605 against. . . .

Plaintiff Habecker was deposed on June 16, 2005. In the course of his testimony, he introduced all the e-mails both he and the Town’s web site had received concerning his recall. Of 160 total e-mails, 153 said they would vote for or against Habecker because of his stance on the Pledge, six were highly vindictive but did not mention the Pledge specifically, and one said it would vote against Habecker for a reason other than the Pledge.

History of the Pledge Of Allegiance

The Pledge of Allegiance was originally written in 1892 by an ordained Baptist minister, Francis Bellamy, to celebrate the four hundredth year of Columbus’ first voyage to the United States. Bellamy’s composition made no reference to religion. It read: “I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible with Liberty and Justice for All.” S. Guenter, The American Flag, 1777-1924, 130-31 (1990).


Attorney Robert R. Tiernan
Photo by Brent Nicastro

In the summer of 1892, President Benjamin Harrison issued a proclamation promoting display of the flag in schools and, in 1898, the individual states began passing laws requiring recitation of the Pledge in public schools, New York State being the first. In 1942, a national flag code, which included the Pledge of Allegiance, was enacted by the United States Congress.

Although several changes were made to the Pledge in the first sixty-plus years of its existence, it was not until 1954 that the concept of religion was introduced. This was in the midst of the Cold War, the denouncement of “godless Communism,” and the hysteria of the McCarthy era. A campaign to insert “under God” in the Pledge was spearheaded by the Knights of Columbus, an extremely sectarian Roman Catholic fraternal group. Congressional sponsors of the amended Pledge clearly stated their intention “. . . that every day our children go to school and make their pledge of allegiance to the flag, they recall that they do so with recognition of God.” H.R.J. Res. 243 and Other Bills on Pledge of Allegiance: Hearing Before Subcomm. No. 5 of the House Comm. on the Judiciary, 83d. Cong. 37 (1954) (statement of Rep. Peter Rodino).

The amended Pledge was codified into law and now states: “I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.” 4 U.S.C. 4 (1954). Two years later “In God We Trust” was made our national motto. 36 U.S.C. 302. Congressman Bennett of Florida, who introduced and managed that legislation in the House of Representatives, stated: “At the base of our freedom is our faith in God and the desire of Americans to live by His will” and “As long as this country trusts in God, it will prevail.” 101 Cong. Rec. 4384 (1955). . . .

The Pledge of Allegiance Violated Plaintiff Habecker’s First Amendment Rights

It is axiomatic that the state has no right to force a citizen to pay homage to a deity. The Court has made it clear that citizens are entitled to worship any God or no God at all. Wallace v. Jaffree, 472 U.S. 38, 53 (1985); Epperson v. Arkansas, 393 U.S. 97, 104 (1968); Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15-16 (1947). This protection lies at the very heart of our republican form of government.

Plaintiff Habecker is an agnostic. He does not believe in any God and he cannot, in conscience, profess that this is a nation under God. Yet, that is precisely what he would have had to do to avoid being recalled from office.

Habecker was in a circumstance where being confronted with the Pledge could not be considered voluntary in any fair sense of that word. He was not a spectator at a baseball game or even on the campaign trail where he could have just as easily chosen to be absent rather than face the prospect of political disfavor. Habecker was an elected member of a government Board whose meetings required his attendance. The Pledge was recited after the Board meeting had been opened and it was, therefore, an integral part of the Board’s official business. Habecker was trapped. It would be sophistry to argue that Habecker had every right to abstain from saying the Pledge and, yet, that he must bear government-sanctioned consequences for his action. If one can be removed from office for exercising such a basic right, the right is empty.

In Lee v. Weisman, 505 U.S. 577 (1992), the government argued that, because attendance at a public high school graduation was voluntary, the Plaintiff, a graduating student, could have avoided a religious benediction to which the student objected merely by not attending the commencement ceremony. The Court held that “(such an) argument lacks all persuasion. Law reaches past formalism. And to say a teenager has a real choice not to attend her high school graduation is formalistic in the extreme.” Similar logic was applied to enjoin a student-led prayer at an interscholastic football game. Rejecting the argument that the student could have opted to avoid the prayer simply by not attending the game, the Court held that student participation at sporting events is part of the school experience and it would be unreasonable to force a student to make such a choice. Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000).

The situation faced by Habecker was far worse than merely attending a public function like a commencement or a football game. Habecker was required to attend and was expected to actively participate in the ceremony, i.e., he was supposed to rise, put his hand over his heart, and join in reciting the Pledge. That also differentiates this case from others such as Marsh v. Chambers, 463 U.S. 783 (1983), where legislative prayer was held to be constitutional. In Marsh, the legislators in attendance merely sat passively, albeit solemnly, while a clergyman prayed. Had those legislators been asked to kneel and join in the prayer, the result in Marsh would surely have been different.

By exercising his constitutional right not to participate in saying the Pledge, Plaintiff Habecker thereby revealed his innermost religious beliefs. Neither the Mayor nor the Board of Trustees had the right to put him in that position. Citizens are entitled to remain silent and to hold their religious beliefs private. Wooley v. Maynard, 430 U.S. 705 (1977); Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781 (1988); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 246 (1974); and West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943). The Pledge had the effect of allowing “Peeping Toms” like the Non-Town Defendants to ferret out nonbelievers and then retaliate against them.

There is yet another aspect of the Pledge, with its reference to God, that is cause for concern. It combines patriotism with religion, a volatile mixture to say the least. It encourages religious bigots to pursue their agenda against nonbelievers under the pretext that the latter are “un-American” or else they would say the Pledge.

In West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), the Court addressed the constitutionality of a State law that imposed penalties for any student who refused to join in reciting the Pledge of Allegiance. At the time, the Pledge made no reference to God. Nevertheless, the Court held that the law abridged the constitutional rights of a Jehovah’s Witness whose religion considered the Pledge to be a form of idolatry. Barnette, a bulwark in First Amendment law, continues to stand for the proposition that the Free Exercise Clause prohibits the State from forcing one to violate his or her religious convictions.

In a strongly worded opinion, Justice Jackson in Barnette stated that “The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of the majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” (Emphasis supplied).

Habecker lost his seat because, and only because, of the Pledge of Allegiance. This is not open to question. . . .

Were it not for the fact that the Pledge of Allegiance bears the national government’s imprimatur, and that it combines religion with patriotism, Habecker would undoubtedly be continuing to serve out his term as a Town Trustee.

There appears to be no legal or practical way to reconstruct matters in a way that would make Habecker whole. This Court vacated the preliminary injunction it had originally put in place, and by the time this case wends its way through the courts, Habecker’s normal term will have expired. The Court can, however, take remedial steps to ensure that this tawdry episode is not repeated. It can declare recitation of the Pledge of Allegiance unconstitutional not only as an infringement of Habecker’s right to free exercise of religion but also as violations of the Establishment Clause and Article Six of the Constitution, which prohibits religious tests for public office. This would do no violence to Colorado law or to the constitutional right of voters to petition their government for redress under the First Amendment. If the Court neglects to order corrective action, religious bigots are sure to seize the opportunity to use the Pledge as a masquerade to purge “undesirables.” . . .

If the Court does not order remedial action here, we are well on our way to a theocracy where the rule of law will give way to the rule of God, and where atheists, agnostics, and religious nonconformists will be outcasts.


As stated earlier, Plaintiffs submit that the obvious remedy is to declare”under God” in the Pledge of Allegiance unconstitutional and order that it be excised from the Pledge. While this will not restore Habecker to public office, it would have two beneficial effects. First, it would remove an impediment to Habecker’s running for re-election and, second, it would prevent this tragedy from repeating itself by eliminating the government practice which is the root of the problem. The fact that the recall has taken place and Habecker cannot be made entirely whole does not extinguish his right to relief. See, e.g., Lee v. Weisman, supra, where the Court enjoined “nonsectarian prayer” at a public school commencement even though the offending commencement ceremony at issue had long since been held. See also Santa Fe Independent School Dist. v. Doe, supra, where the Court granted relief five years after the contested practice had occurred.

For the foregoing reasons, it is respectfully requested that the Court grant Plaintiffs’ Motion for Summary Judgment.

Respectfully submitted,
Robert R. Tiernan

Freedom From Religion Foundation