FFRF Colorado Day of Prayer decision appealed

The Freedom From Religion Foundation and four of its more than 400 Colorado members sued Gov. Bill Ritter Jr. in state court in November 2008 for officially proclaiming May 1, 2008, as the Colorado Day of Prayer: “Whereas, in 2008, the National Day of Prayer acknowledges Psalm 28:7 — ‘The Lord is my strength and shield, my heart trusts in Him, and I am helped;’ ” the proclamation said in part.

The plaintiffs called Ritter’s action illegal government endorsement of religion. The state Day of Prayer proclamation was made in tandem with the National Day of Prayer Task Force, a Christian evangelical organization based in Colorado Springs and chaired by Shirley Dobson, wife of Focus on the Family founder James Dobson.

FFRF challenged not just the 2008 action, but the governor’s yearly practice of coinciding prayer proclaimations with the federally proclaimed National Day of Prayer on the first Thursday in May. No state law compels a Colorado prayer day.

On Oct. 28, Colorado District Judge R. Michael Mullins dismissed the suit and upheld the constitutionality of Ritter’s proclamation. The court concluded that gubernatorial proclamations are issued without any thought or analysis, including official proclamations issued to the National Day of Prayer Task Force, as a means of giving “open access to the Governor’s Office.”

Because official proclamations are casually issued using the governor’s official seal, the court concluded that a reasonable observer would not think that the governor supported or endorsed the causes touted in the proclamations. The court’s holding that such proclamations do not lend support to the annual Colorado Day of Prayer contradicted the perceptions of even the supporters of the Day of Prayer.

FFRF Co-President Annie Laurie Gaylor called the decision disappointing. “We have filed an appeal. No governor has the right to exhort citizens to pray, to set aside an entire day for prayer, much less an entire day for prayer every year.”

Gaylor added, “As president, Thomas Jefferson said the Constitution did not give him the right to direct the conscience of his constituents over religious ritual and belief. How then can Governor Ritter feel he possesses that right? He was elected governor, not preacher.”

Richard L. Bolton, FFRF’s litigation attorney, finds the court’s endorsement analysis unpersuasive. “The court ignored in its analysis the undisputed fact that proclamations are requested from the Governor’s Office for the very reason that they give the appearance of official endorsement. Groups would not request official proclamations if they did not provide sanction and credibility to their agendas, including the mission of the National Day of Prayer Task Force,” Bolton said.

“The court found as a matter of fact that members of the National Day of Prayer Task Force believe that ‘state honorary proclamations issued by governors lend the governors’ support to the National Day of Prayer.’ The court also found that ‘the purpose of the private organizers of the Colorado Day of Prayer, including the National Day of Prayer Task Force, is to encourage prayer,’ ” Bolton said.

Ritter, a Democrat, did not run for reelection. He’s a former prosecutor who with his wife served in Zambia in the late 1980s as a Catholic missionary. He’s also strongly opposed to abortion rights.
In his decision, Mullins claimed “there is almost no relationship between the National Day of Prayer Task Force and the Governor’s Office. The State does not examine the purposes of the National

Day of Prayer Task Force before issuing its proclamation, and is not making a determination of what activities are ‘religious.’ ”

The judge found, however, that Governor Ritter personally appeared in 2007 at a National Day of Prayer celebration at the Capitol, sponsored by the National Day of Prayer Task Force, where he read his annual proclamation. Six weeks before this appearance, Governor Ritter reportedly met with Day of Prayer organizers and prayed with them, according to FFRF evidence cited in the judge’s decision.

“The Governor’s participation in the 2007 National Day of Prayer activities was planned and known in advance; the Colorado Day of Prayer organizers noted as early as April 12, 2007, that Governor Ritter would be part of their program,” the judge further found as a matter of fact.

FFRF has successfully challenged the National Day of Prayer in federal court. On April 15, 2010, U.S. District Judge Barbara Crabb ruled that the federal law designating a National Day of Prayer and requiring a National Day of Prayer proclamation by the president violates the Establishment Clause of the Constitution’s First Amendment. The Obama administration is appealing the judge’s ruling.

According to Bolton, the Colorado court tried without success to unbundle the evangelical purpose of the National Day of Prayer Task Force from the governor’s official proclamations. The court stated that “generally, because the purpose of honorary pro-clamations is to acknowledge events as requested by private groups and individuals and is not an endorsement of their purposes, the purpose of the National Day of Prayer Task Force in requesting the proclamations cannot be directly ascribed to the Defendants.”

“The court’s attempted reasoning ignores the reality that the official ‘acknowledgement’ of the Governor’s Office is not intended by the Governor’s Office or requesting parties as a simple calendar of upcoming events,” Bolton said. “Proclamations are issued by the governor with the knowledge and understanding that private groups like the National Day of Prayer Task Force will tout such proclamations as an official endorsement of their purpose.”

Gaylor said, “The Foundation sincerely thanks Foundation members Mike Smith, David Habecker, Timothy Bailey and Jeff Baysinger for serving as local plaintiffs. We also couldn’t defend the Constitution like we do without members’ continuing contributions to our Legal Fund.”

Freedom From Religion Foundation