Governor’s Prayer Luncheon Goes To Court (December 1994)

p> Last March, the Freedom From Religion Foundation, represented by attorney Robert Tiernan and local plaintiffs Lee Whitfield and Robert Fenn, went to court to attempt to enjoin several Colorado public officials from using their official titles to publicize, endorse and support a Colorado Prayer Luncheon. The injunction was denied and the prayer luncheon with its government endorsement proceeded. Governor Romer, Speaker Berry, Mayor Webb and District Attorney Ritter all participated at the event, sponsored by the Denver Leadership Foundation. The Denver Leadership Foundation is a religious-oriented organization whose purpose is to promote Jesus Christ. Each of the defendants in the case were part of the host committee whose purpose was to enlist attendance and promote the prayer gathering. With the exception of District Attorney Ritter, the official title of each of the defendants was used on the listing of the host committee.

The case is now on appeal. Freethought Today is excerpting Robert Tiernan’s impressive oral arguments, which raise compelling legal objections to the practice of government-sponsored prayer functions:

We are now at the thrust of the case. Individuals Governor Romer, Mayor Webb, District Attorney Ritter, and Speaker Berry are asserting they have their first Amendment rights to exercise free speech and freedom of religion. On the other hand, we say they may not promote or endorse religion. This is a version of the age-old conflict between the establishment clause and the free exercise clause.

Our position, Your Honor, is this: The defendants do have the right to freely exercise religion, but not to the point where they, in their official capacities, endorse it. That puts them on a different footing than the average citizen. The average citizen does not have the capability to violate the establishment clause and, therefore, does not have that restriction on the right to free exercise of religion or speech.

It is for this reason that we disagree with the position the defendants are taking. Each of the defendants is a powerful government official. Governor Romer has the power to call out the militia. Mayor Webb has the power to delay the opening of Denver International Airport. Bill Ritter has the power to charge citizens and threaten them with loss of liberty. Berry is an influential legislator. Plaintiffs Whitfield and Fenn have no such power. They have no power at all. There is an old maxim, Your Honor, that the bestowal of power carries with it a concomitant duty. That’s true here. Whitfield and Fenn don’t have the power that the defendants have; therefore, they have no duty to comply with the establishment clause or, for that matter, any other part of the Bill of Rights.

The Bill of Rights is a limitation on the power of government, and only that. On the other hand, Defendants Romer, Berry, Webb, and Ritter have great power. To obtain that power, each of them took an oath of office to uphold the Constitution, including the Bill of Rights, an oath that neither Whitfield nor Fenn took.

In taking that oath, the defendants, in effect, gave up some of their rights. One of those was the right to free exercise of religion, anytime such exercise constitutes government endorsement of that religion.

Let me give the Court an example, if I may. You and I stand here today. You are an officer of the State, Your Honor. I’m a private citizen. If you begin to recite a prayer at this very moment, our position is that you’re violating the establishment clause; therefore, your right to free exercise is limited in that respect. And I refer to North Carolina Civil Liberties v. Costangy, which clearly stands for that, which restrained a judge from saying a prayer in open court.

If I stand here and start saying that same prayer, I’m not violating the establishment clause. As a private citizen, I’m incapable of violating the establishment clause; therefore, in that respect my right to free exercise is broader than the Court’s. However, the Court has power that I don’t. If I’m interfering with the operations of the Court or in the process of the administration of justice, Your Honor has a right to place me in contempt. So in that sense, my right of free exercise is limited, but in a totally different way and for a different reason.

This is true of every liberty, Your Honor, guaranteed under the Bill of Rights. It is only the government that can infringe on those rights. Governor Romer, for example, has the power to order a search and seizure and, conceivably, could order one in violation of the Constitution. Whitfield and Fenn do not have that power. They don’t have the power to order any search, whether it’s legal or illegal. If Governor Romer orders an illegal search, the fruits of that search will be suppressed in a government prosecution. The Court would never countenance an argument that the illegal search was not an act of government, even though the official who ordered the search did so in his “official” capacity, and yet that is what the defendants are arguing here.

As we said, Your Honor, in our brief, government is an inanimate being. The State of Colorado has no muscles, has no arteries, does not breathe. It is through its officials, and its officials only, that the government acts. Governor Romer has immense power to move the wheels of government. So, too, do the other defendants. It is, therefore, curious in this area of establishment of religion, they suddenly say they are private citizens.

The Governor is listed on the host committee and on the agenda in his official title, the title he uses to execute his office, the same title he used when he signed an extradition order earlier in the week, or when he vetoes a bill or when he signs a bill or when he issues any other government order. It’s the same person. It’s the same title. Yet, he will be the first to say he has every right to commit government to a course of action in all these endeavors, except, of course, with respect to religion.

All of a sudden, with respect to religion, he’s not the government. He is, in all these other respects, where he’s exercising power, but now he’s not the government. Your Honor, that’s a contradiction. He either is or he isn’t. He’s a Governor–he’s named as a Governor, and his title is stated on both the agenda and on the invitation.

When Governor Romer, Speaker Berry, Mayor Webb, or District Attorney Ritter support religion in their official capacity, they are the government and they are violating the establishment clause. The right to free exercise is, by definition, therefore, restrained by reason of this.

Is the act of a public official an act of government? It clearly is here. If it isn’t, what is it? The individual defendants here are participating out of concern, in the prayer luncheon. And certainly, it is a legitimate concern, but, clearly, they are participating as government officials. They say they are participating as private citizens. How can they say that? Mayor Webb testified he is the Mayor even when he’s having his hair cut. He’s always the Mayor. Governor Romer says he’s always the Governor. I didn’t say that. We didn’t say that. They said that.

All of the witnesses who testified on behalf of the Denver Leadership Foundation have the unlimited right to participate; that is, the private individuals who testified at the conclusion of yesterday’s proceedings have the unlimited right to participate in public at the prayer luncheon. That’s because they’re not government officials. Government officials do not have the same right.

Mayor Webb clearly stated he endorses the day of prayer, an event characterized by one of the defendants’ witnesses as a “prayer meeting.” Bill Ritter stated he endorses the day of prayer, although he was careful to say in his personal capacity, a capacity he strangely denies he even has, when he says he’s now D.A. Ritter, no longer Public Citizen Ritter. Governor Romer was not directly responsive to the questions, but he did say he endorses prayer as a way of ending violence.

Your Honor, that is precisely the purpose of the prayer luncheon. It is fair to say that the individual defendants are endorsing the prayer luncheon by reason of their own testimony.

Your Honor, prayer is religious. It is one of the most, if not the most, sacred exercises of religion. In our brief we cite North Carolina v. Costangy, which clearly states that exercise of prayer has no secular purpose. The fact prayer is being offered to reduce crime or for any other desirable public policy does not make it secular. Costangy makes that clear, Your Honor. Here, Speaker Berry is going to read from the Bible.

In our brief we also cite Lee v. Weisman, the recent U.S. Supreme Court case, which stands to the proposition prayer is religious, whether it is a particular religion or totally nondenominational. The United States Supreme Court in Lemon v. Kurtzman stands for the proposition that the Constitution is violated if the government advances religion. Wallace v. Jaffree, which we cite, and a copy of which we gave Your Honor yesterday afternoon, defines advancing religion as including the endorsement of prayer activities.

Before concluding, Your Honor, a couple of notes. The defendants are emphasizing public funds are not being expended on this event. To a limited extent, we dispute that. The convention center is a public facility. Just like the Ten Commandments, it’s not supposed to be used to convey government endorsement of religion. The defendants have salaries that are being paid while they’re appearing at the event. In the final analysis, whether or not government funds are being expended is not relevant, Your Honor. The issue is government endorsement. That really is the only issue.

The defendants also seem to be saying they are not advancing religion because they are appearing at an event sponsored and organized by an unrelated party. That, too, is irrelevant, Your Honor. If I may, I would like to quote from a Supreme Court decision that we have not provided Your Honor. It’s the decision of the Court in Alleghany County v. Greater Pittsburgh ACLU:

“The establishment clause does not limit only the religious content of the Government’s own communications, it also prohibits the Government’s support in promotion of religious communications by religious organizations.” The case is cited for government support of the distribution of religious messages by others as violative of the establishment clause. Indeed, the very concept of endorsement conveys the sense of promoting someone else’s message. Thus, by prohibiting government endorsement of religion, the establishment clause prohibits precisely what occurred here. The Government’s lending its support to the communication of a religious organization’s religious message. That is exactly what’s happening here, Your Honor.

Your Honor, the materials in this record clearly illustrate the purpose of this function is to infuse religion in the government and into public policy matters, such as youth violence. This is a religious function, which, under the language just quoted, Your Honor, constitutes endorsement in violation of the establishment clause.

My clients were before the Denver District Court just three months ago. That case involved a citywide day of prayer, which was being sponsored in part by Mayor Webb. In declaring Mayor Webb’s sponsorship as unconstitutional, Judge McMullen stated the first Amendment provides in part that, “Congress shall make no law respecting an establishment of religion.”

It is relevant to determine whether government conduct violates the establishment clause and whether the governmental action would be interpreted by a reasonable person as endorsement of religion. The challenged conduct here is Mayor Webb’s press release and press conference endorsing a day of prayer. Since prayer is exclusively a religious act, the endorsement of a day of prayer would logically be interpreted by a reasonable person as endorsement of religion, because from all appearances, Mayor Webb was acting in his official capacity in issuing the press release and conducting the press conference, endorsing the day of prayer. The Court concludes that a reasonable person would interpret his contact as governmental endorsement of religion. As such, it violates the establishment clause.

Your Honor, there’s a difference here between the facts in that case and the facts here. It’s not a difference in kind; it’s a difference in degree. The thrust of these decisions is that if an activity constitutes endorsement, it’s prohibited under the establishment clause, if that person is doing the endorsing in his official capacity. Clearly here, Your Honor, that is the case. We are not before this Court nit-picking, as some have been rumored to say. We are here, Your Honor, because we consider the United States and Colorado Constitutions to be more important than religion.

The Constitution is my client’s bible. It is, obviously, not other people’s bible. It is our constitution, Your Honor, that makes us free, not religion or Jesus Christ. That’s why we’re here today. Governor Romer, Speaker Berry, Mayor Webb, and District Attorney Ritter have every right to pray and participate in prayer, but they must do so as private citizens. They can pray at home; they can pray at church. There’s a lot of ways they can pray. That’s not the situation here. Here they are hosting, promoting, endorsing, and furthering a religious event, a prayer meeting, in their stated capacities as public officials.

Your Honor, this is an affront not only to my client, but to the Constitution of the United States, and must not be allowed by this Court. . . .

Thank you.

The Court: I just have a couple questions. The evidence is uncontradicted that the Denver Leadership Foundation modeled the Colorado Prayer Luncheon after the National Prayer Breakfast. March 4 will be the seventh Colorado Prayer Luncheon. Exhibit Q shows about, a month ago, they had the 42nd annual National Prayer Breakfast with the President of the United States and Mrs. Clinton. The invitations are very similar. In fact, the invitations to the National Prayer Breakfast begin, “Members of the United States Senate and the House of Representatives request the pleasure of your company at the 42nd Annual National Prayer Breakfast.”

Looking at the agenda, the chairman of the National Prayer Breakfast is the Honorable Howell Heflin. There’s a pre-breakfast prayer. There’s an opening prayer by the Honorable Harris Wofford–or there was, since this was February 3. A U.S. senator from Pennsylvania, a U.S. senator from Alabama, Senator Heflin, who was the chairman, gave a welcome. There were remarks from U.S. Representative Hutto, in Florida. The Old Testament was read by Chief Judge Barbara Rothstein, from the U.S. District Court for Western Washington. Then there were remarks from Senator Hatfield, the song Amazing Grace was sung, and then the Vice President of the United States appeared.

There was a New Testament reading from Don Shula, the head coach of the Miami Dolphins. The original scheduled speaker for the luncheon, the Honorable Tony Hall, was scheduled on that program to give a prayer for national leaders. The message was scheduled to be delivered by Mother Teresa. The President of the United States was scheduled on the program, introduced by Senator Stevens, of Alaska. The closing song was “How Great Thou Art.” Then there was a closing prayer by midshipmen from the United States Naval Academy. Printed to the left of the agenda is something entitled “Who is Jesus to Me,” by Mother Teresa.

The United States Code, 36 U.S.C. 169, Sections G and H. provide that the President shall set aside or claim the first Thursday in May each year as a national day of prayer, on which the people of the United States may turn to God in prayer and meditation in churches and groups and as individuals. That’s the United States Code. Section 169G is Memorial Day, is a day of prayer for permanent peace.

In one case before the United States Supreme Court, there was a challenge of a practice by the State of Nebraska paying for a chaplain with out-of-state funds and having a prayer open the–each legislative session in the state of Nebraska, and the U.S. Supreme Court upheld, as constitutional, both the practice of paying the chaplain and the prayer.

What do you make of all that?

Mr. Tiernan: It better stop, or we’re going to have a theocracy–the United States of America is going to be a theocracy. We’re concerned about that, Your Honor. This prayer breakfast–and I don’t mean to be rude to people. The President of the United States and the Vice President of the United States and the–and other government officials who participate in that prayer breakfast are violating the establishment clause of the Constitution.

The problem is this: That’s done, and then some organization, like the Denver Leadership Foundation, comes along and says, Well, we’re going to model ours after theirs. And then they argue, Well, ours is okay because we’re following a precedent that’s never been challenged in court.

I would like to challenge the National Prayer Breakfast, Your Honor, because I think it’s worse than what’s happening here. There’s a motto of “In God we Trust” in currency. People are arguing now, that’s becoming a tradition because it goes back to the middle ’50s, when it was adopted as our national motto.

Your Honor, chaplains. James Madison, who was the architect of the religion clause of the first Amendment, did writings. In the course of those writings, he said, in his opinion, that paid government chaplains would violate the establishment clause of the United States Constitution. There are a lot of–you know, Your Honor, if violations of the establishment clause of the Constitution were cars, I feel like my client could make a fortune, like General Motors, because they’re everywhere.

One of the problems we have is, these cases are cited to us as reasons why we don’t have a right to relief here, when the fact of the matter is that, in my opinion, several of those practices could be attacked and declared by the Court to be unconstitutional. It’s just that the people who do that kind of thing don’t have the resources to take all of those [challenges] on.

Then there’s another aspect about the National Prayer Breakfast, as an example. This is a problem when we have these kinds of events. It’s political. If President Clinton says, No, I won’t attend that, he’s going to be a political non gratis with a lot of people. In a way, he has no choice but to attend. That’s why a court should tell him he can’t attend. That’s why this Court should tell Governor Romer he can’t attend.

Governor Romer says he wants to attend. Bill Ritter says he wants to attend. The other individuals say they want to attend and maybe they do and maybe they don’t. I’ll take them at their word. But getting wrapped up in prayer in this country is beginning to become a political necessity. We’re asking the Court to stop it in this case. A very limited case, but it’s got to stop somewhere, Your Honor.

Freedom From Religion Foundation