Suit over pledge tossed; '05 Estes recall vote upheld

Charlie Brennan, Rocky Mountain News

Saturday, September 23, 2006

A federal judge has dismissed a lawsuit by a former Estes Park town official asking that the Pledge of Allegiance be ruled unconstitutional.

U.S. District Judge Edward W. Nottingham, in a 40-page summary judgment issued Thursday, also refused to void results of the March 22, 2005, election in which Estes Park trustee David Habecker was recalled for his refusal to stand and recite the pledge.

Habecker contended that the inclusion of the words "under God" in the pledge and the Estes Park Board of Trustees' requirement that it be said at meetings violated the constitutionally mandated separation of church and state.

At the heart of Nottingham's ruling was his finding that Habecker was not forced by anyone to stand and recite the pledge, and that voters in the recall were free to vote for, or against, his retention.

Therefore, Nottingham ruled, "the pledge itself did not cause Habecker's recall, or any other injury."

Estes Park officials greeted Nottingham's decision with relief.

Mayor John Baudek said, "I'm certainly sorry that this whole matter ended up being in court, but I thought from the start that the Pledge of Allegiance was certainly constitutional."

The controversy, which culminated in Habecker being tossed from office, cast a spotlight on the town at the eastern entrance to Rocky Mountain National Park more accustomed to being a scenic tourist magnet.

The Department of Justice had entered the case on the side of Estes Park, defending the pledge as a patriotic exercise - not a religious one.

"This started (in May 2004) with a trustee's suggestion that we say the pledge, and I thought it was pretty much like motherhood and apple pie; I didn't think it was a big deal," said Baudek. "It ended up stirring a lot of passion on both sides."

Habecker, part owner with his wife of an Estes Park lodge, is a 61-year-old agnostic who served on the town board for 12 years prior to being recalled over the pledge flap. He was joined in the suit by the Madison, Wisc.-based Freedom From Religion Foundation Inc.

Habecker wasn't shocked to see the ruling go against him.

"Of course, we kind of expected somehow or other that the federal courts would weasel out of hearing the case and dealing with it," he said.

The pledge was written in 1892, and the phrase "under God" was added in 1954.

"I think there is a great fear in this country that this ("under God" clause) is subject to being removed," Habecker said.

The way he sees it, "I was removed from office because of my religious beliefs."

The council adopted the recitation of the pledge for its meetings at the suggestion of trustee Lori Jeffrey-Clark, who has since left the board through term limitations.

At the May 11, 2004 meeting and at several subsequent sessions, Habecker stood for the pledge and recited it, omitting the words "under God."

But starting with the Sept. 14, 2004 meeting, he remained seated and didn't recite the pledge at all, as an expression of his belief in the importance of church and state separation.

Jeffrey-Clark's husband soon started circulating a petition calling for Habecker's recall.

Town attorney Greg White on Friday applauded Nottingham's decision, and emphasized that it was the citizens of Estes Park, and not town officials, who acted against Habecker.

"The town never took any position at all with regard to Habecker's unwillingness to say the Pledge of Allegiance," said White. White, like numerous town officials, had been named as a defendant in Habecker's suit.

Habecker's case will likely be taken to the U.S. 10th Circuit Court of Appeals, said his attorney, Robert R. Tiernan.

Nottingham is dodging the issue, said Tiernan, in asserting that Habecker's a victim of Estes Park voters, and not of the pledge.

"He says my client wasn't forced to say the pledge," said Tiernan. "I don't agree. My client had no choice, if he was going to be conscientious, but to sit it out. That's a right he has, and he shouldn't be punished for that."

brennanc@RockyMountainNews.com or 303-954-2742