How I failed the religious test for public office.

As far as I know, I'm the only elected government official to be recalled from office for not standing to recite the Pledge of Allegiance.

I have been a resident of Estes Park, Colorado, for the last twenty-eight years, and in that time my wife and I have raised a family, built two businesses, and actively supported our church, schools, and community. I was elected to the town board four times and had served a total of thirteen years as trustee. My patriotism, respect for my fellow citizen, and respect for my community and country have never been questioned, as I have never given anyone reason.

But last April one of my fellow board members suggested that we begin reciting the Pledge of Allegiance at our bimonthly board meetings as a show of support for our troops. No discussion followed and I assumed her suggestion died for lack of a second. Two meetings later, however, the mayor said we were starting a new tradition by reciting the Pledge at the beginning of each meeting. And we did.

Now, it had been a long time since I'd participated in this ritual. And a lot of water had passed under my bridge. Different beliefs and experiences had changed my feelings toward God and the Pledge and now, instead of it being a feel-good exercise, I felt boxed in.

First of all, the Pledge is demeaning: our allegiance to this country should be assumed, just as is our innocence of any crime. Secondly, I knew there were constituents and family who, because of differing conscientious objections, could not participate in the Pledge; they were now excluded from equal participation in our town meetings. Thirdly, there were people who would know that I was a hypocrite by standing for something they knew I objected to. How could I be true to anyone if I couldn't be true to myself?

And finally, by reciting the Pledge we acknowledge a god. And even though some courts have argued that this reference to God is some benign, obscure, historical one, we all know better. The majority of Americans believe we are referring to their Christian god and that, in fact, we are a Christian country. By reciting the Pledge I would be verifying their assumptions, even if I didn't say the "under God" part.

I had lost my freedom and only knew of one way to get it back.

By the second meeting in August I saw no other recourse than to remain seated. I stated that the words "under God" offended me and that I would remain seated until Congress removed them. In a tolerant society this would have been the end of the story. But in today's political climate, it's another story.

At our next meeting the board member who originally requested the Pledge, and subsequently her husband, said it was my right to protest and that they, as veterans, would defend that right ... but, as an elected official, I must respect the majority opinion and if I didn't, they wanted their vote back.

Her husband and two other men proceeded to initiate my recall.

The citizens at the following meeting were mostly hostile, with several coming forward to soundly criticize my actions and demand my resignation. The worst was when a veteran of World War II and Korea, who I've known for years, came forward and gave me hell, calling me disgusting, disrespectful, and unworthy of my position. Finally, from the back of the room came an old timer who I knew was a retired history teacher. He introduced himself and explained that he also didn't stand for the Pledge as it wasn't a necessary exercise for him. His story was that he had flown B-17s during World War II and had been shot down over Germany. After spending a year and a half in a prisoner of war camp he knew he was being liberated when he saw our flag. His point was that no one could question his patriotism or love of country and mine shouldn't be questioned either.

I then read a statement explaining that I meant no disrespect but that my religious convictions prevented me from participating as they demanded. And besides my religious convictions, it was my sworn oath to support the Constitution of the United States, which I believe forbids my participation in the Pledge. Article Six says in part, "but no religious Test shall ever be required as a Qualification to any Office or Public Trust under the United States." The first amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Pledge is a religious test; it is a de facto law respecting the establishment of religion. And if I were to be recalled, my free exercise would have been prevented.

I then challenged the community, saying that if they believed my constitutional rights could be subjected to a majority vote of the people of Estes Park, they were then duty bound to sign the recall petition. The petition was approved for form, signed by the requisite number of voters (about 5 percent), and an election date was set.

Soon after, I ran an ad in our local newspapers starting with the words of the petition:

   Electors suffer loss of confidence in Mr.
   Habecker's ability to represent citizen's
   national 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 this elected position.

In reply I then wrote:

   The words of the Petition and statements
   made by its supporters have been inaccurate,
   exaggerated, and are meant to
   inflame people's passions against me, my
   family, and my livelihood.

   I did not "... purposefully and irreverently
   ... sit, facing away from the flag ..."
   Proponents of the Recall make it a point
   to say that I turned my back to the flag,
   which is an inflammatory statement and
   untrue; literally and figuratively.

   I was last elected two years before the
   Pledge was added to our Board meetings.
   To say that any campaign omission
   concerning the Pledge was a deliberate
   tactic would make me clairvoyant, not
   unethical!

   The petitioners can't say they respect my
   right to free speech when at the same
   time they use extreme methods and language
   to coerce me or any future trustee
   from ever exercising free speech. To
   remain seated during recital of the
   Pledge shows respect for the Oath of
   Office and is supported by the United
   States Supreme Court.

This was followed by a quote from Justice Robert Jackson from the U.S. Supreme Court opinion, West Virginia State Board Of Education v. Barnette, June 14, 1943, a ruling against the compulsory recital of the Pledge. I then concluded:

   We now find ourselves in a situation that
   is not of my choosing. The Pledge of
   Allegiance is a loyalty and religious test
   which should not be part of our official
   Town Board meetings. The choice to rise
   or remain seated during its recital
   is a guaranteed First Amendment right
   which cannot be subjected to a vote of
   the people.

   The State statute concerning recall
   allows the petitioners full responsibility
   for its content but denies me the ability
   to challenge its constitutionality without
   using the courts. When the Petition is
   submitted with the required number of
   signatures, the Town (and this means all
   of us) assumes responsibility for its content
   and must defend the voter's actions.

   How does this coercive action affect your
   exercise of religion or free speech? Do
   you feel intimidated? Are all citizens'
   First Amendment rights going to be
   subject to the test of the majority? Who
   is the next person to meet with some
   malice or persecution or prejudice at a
   Town Board meeting? If it's you, who will
   stand up and defend your rights?

At the same time my attorney, Robert Tiernan, filed a complaint with the U.S. District Court in Denver, asking that the recall vote be stopped, the Pledge be found unconstitutional, the denial of my rights to free speech and religion be acknowledged, and that my recall be declared in violation of the Colorado Constitution (which says specifically, "no person shall be denied their political capacity because of their religious beliefs").

To this point I hadn't revealed what my religious beliefs were. But to legitimize my claim, I then revealed that I was agnostic. I also revealed that my son, a graduate of Cal Tech with a degree in physics, was also agnostic, and that my daughter, who served as a paramedic in Denver, where she had two ambulances totaled from under her, was a Jehovah's Witness. Since the Pledge was instituted, neither of my children have been welcome at our board meetings.

Herein lies the dilemma. Can a citizen use discriminatory reasoning to justify voting for one person over another? Can a person rule out a candidate for elected office because that person is black, a woman, Arab, Jewish, or in a wheelchair? In a general election there is no way to prove what criteria a person uses when voting, so the answer might be, yes they can. But morally and ethically the answer might be, no they can't.

In the case of a recall vote like mine, where the reason is specifically discriminatory, do the same rules apply? On religious grounds, I chose not to participate in the voluntary Pledge of Allegiance. And for that reason only I was recalled (with a vote of 903 to 605). The petitioners say that the recall had nothing to do with my religious beliefs; rather, they object to my lack of respect for their beliefs. In other words, I can refrain from saying the Pledge as long as they don't know about it. But where is the respect for my beliefs? Where is the tolerance?

Even though my businesses have been neglected and my retirement account is taking a hit, my court case is going forward. At my last board meeting, I ended my comments by standing and saying:

   I pledge allegiance to the United States of
   America and to the Constitution on
   which it stands; one nation, with liberty,
   justice, and tolerance for all.

I then kissed the flag and sat down.

David Habecker is a father, businessman, and active citizen in Estes Park, Colorado.This column is based on a speech he gave on May 7, 2005, at the American Humanist Association's national conference in Albuquerque, New Mexico.