Gubernatorial Colorado Day of Prayer proclamations unconstitutional

A unanimous three-judge panel of the Colorado Court of Appeals ruled today in favor of the Freedom From Religion Foundation’s challenge, originally filed in 2008, against gubernatorial proclamations of a Colorado Day of Prayer.

Judge Steve Bernard, with concurrences by Judges Alan Loeb and Nancy Lichtenstein, overturned a lower court decision, ruling in favor of FFRF’s challenge of Colorado Day of Prayer proclamations: “A reasonable observer would conclude that these proclamations send the message that those who pray are favored members of Colorado’s political community, and that those who do not pray do not enjoy that favored status.”

Bernard wrote that “the six Colorado Day of Prayer proclamations [2004-09] at issue here are governmental conduct that violate the Preference Clause [of the Religious Freedom section of Colorado’s Constitution].” The content is “predominantly religious; they lack a secular context; and their effect is government endorsement of religion as preferred over nonreligion.”

The proclamations “have the primary or principal effect of endorsing religious beliefs because they convey or attempt to convey a message that religion or a particular religious belief is favored or preferred.” The 74-page decision noted that the “inclusion of biblical verses and religious themes,” statements urging “that individuals will unite in prayer” and the governor’s signature, imprimatur and seal make “no doubt here that the religious message is attributed to the Governor.”

“The proclamations serve an exclusively religious purpose,” and are “addressed to the public generally . . . extend[ing] beyond the walls of the legislative assembly, or the boundaries of the graduation hall, to the borders of the State.” The proclamations “reflect an official belief in a God who answers prayer. At the same time, for those who do not believe in such a God, the proclamations tend to indicate that their nonbelief is not shared by the government that rules the State. In so doing, they undermine the premise that the government serves believers and nonbelievers equally.”

The decision continues, “They are not a small part of something larger that serves a secular purpose. Rather, they stand, individually and collectively, as a call to ‘actual worship or prayer’. . . . Indeed, the proclamations, by themselves, are reasonably viewed as exhortations to participate in ‘offficial prayers’ that have been composed as ‘part of a religious program carried on by the government.’ This effect is amplified by the biblical verses and religious themes.”

The appeals court noted that Gov. Bob Ritter even spoke at a private Colorado Day of Prayer celebration held on the steps of the Capitol in 2007.

The judges prefaced their decision by pointing out that “our decision does not affect anyone’s constitutionally protected right to pray, in public or in private, alone or in groups,” but that religious liberty is “abridged when the State affirmatively sponsors the particular religious practice of prayer.”

The court said the individual has the “right to refrain from accepting the creed established by the majority.”

Bernard noted that “all the proclamations of the Colorado Day of Prayer were issued in response to annual requests from the National Day of Prayer Task Force,” with an overtly proselytizing and theocratic mission seeking gubernatorial support.

FFRF won a federal district court ruling, FFRF v. Obama, in 2010 declaring the federal National Day of Prayer unconstitutional. FFRF demonstrated the religious origins of the 1952 and 1988 acts of Congress, with Rev. Billy Graham and other evangelists pushing for the laws. The evangelical National Day of Prayer Task Force — based at Focus on the Family headquarters in Colorado Springs — has essentially acted as an arm of the government since 1988. In 2011, the 7th Circuit U.S. Court of Appeals threw out FFRF’s standing.

But the Colorado appeals court affirmed standing, without offering a legal judgment on the National Day of Prayer itself. No court has ever upheld the day of prayer on its merits under the Establishment Clause.

The appeals court is remanding the case to the trial court to consider whether a permanent injunction should be entered.

“We’re exulting over the fact that reason has prevailed, and constitutional rights have been affirmed,” said Annie Laurie Gaylor, FFRF co-president.

FFRF thanks its local plaintiffs and members Mike Smith, David Habecker, Timothy G. Bailey and Jeff Baysinger, who made possible the challenge. FFRF congratulates its litigation attorney Richard L. Bolton.

Freedom From Religion Foundation

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