Saturday, March 15, 2008

Town Trustee's Suit Over Pledge Refusal Recall Is Dismissed

In Habecker v. Town of Estes Park, Colorado, (10th Cir., March 14, 2008), the U.S. 10th Circuit Court of Appeals affirmed a lower court's dismissal on justiciability grounds of a lawsuit brought by a former Trustee of the Town of Estes Park. (See prior posting.) Trustee David Habecker, an atheist, was recalled by voters after he refused to stand and recite the pledge of allegiance at Estes Park Board meetings. He objected to the phrase "under God" in the pledge. Habecker sued the town and members of the recall committee alleging violations of the Establishment Clause and of the Constitution's prohibition on creating a religious test for office. The Court of Appeals concluded that Habecker's "loss of elected office, although an injury in fact, was the result of an intervening cause—the electorate—and is not fairly traceable to the defendants. His claimed injury based on social pressure to recite the Pledge does not constitute an injury in fact under Article III, and any controversy arising from an injury based on exposure to the Pledge is now moot given that Habecker is no longer required to attend Board meetings." [Thanks to How Appealing for the lead.]