Unable to obtain an injunction to stop Colorado government officials from hosting and speaking at a prayer luncheon, the Freedom From Religion Foundation, its Denver chapter and individual plaintiffs Robert Fenn and Lee Whitfield are taking their case to the Colorado Court of Appeals.
Among the defendants named in the suit are Roy Romer, Governor of Colorado, Chuck Berry, member of the Colorado legislature and Speaker of the House of Representatives, Wellington Webb, Mayor of Denver, and Bill Ritter, Jr., Denver District Attorney.
"It is truly astonishing," wrote Attorney Robert Tiernan in his introductory statement on behalf of the Foundation, "that these defendants would choose, at this time, to use their offices to host and actively participate in a prayer activity. Just three months ago, Defendant Webb was enjoined by the Denver District Court from officially endorsing and promoting a city-wide day of prayer."
In that suit the court said that prayer is "exclusively a religious act." It held that Mayor Webb's conduct would be "interpreted by a reasonable person as government endorsement of religion." That conclusion, Tiernan argued, was equally applicable to the Colorado Prayer Luncheon.
District Court Judge Larry J. Naves, in denying the injunction, agreed that the defendants were giving the appearance of government endorsement.
"Clearly," Naves wrote, "in this fashion these Defendants intentionally closely associate themselves with the sponsorship of the luncheon, while making it more attractive to attend. Additionally, all of the individual Defendants, with their official titles printed after their names, are scheduled to participate in the luncheon program as speakers. These factors--allowing themselves to be listed as public officials who are also Host Committee members and their direct participation in the luncheon program--provide a sufficient connection between the conduct to which Plaintiffs object and the government so that their individual actions may reasonably be treated as that of the state."
However, in denying the injunction Naves applied the Lemon test in an unusual fashion, finding that the prayer luncheon had a secular purpose and was not "motivated wholly by religious considerations." He also decided that the primary effect of the prayer luncheon was not to advance religion and that "the luncheon does not convey the message of endorsement of religion." Since the government officials only lent their names, presence and speeches to the luncheon, he said, there was not excessive entanglement.
"The Lemon test has long been a comforting mainstay to those of us who care about separation of state and church," said Anne Gaylor, Foundation president. "And here comes a judge who stands it on its head! We have admired Lemon for its clarity. It has been an island, a beacon, in a constitutional morass. Yet Naves decided none of the Lemon provisions applied in this case."
The three-pronged Lemon test asks three question. Does the action or statute in question have a secular purpose? Is the primary effect to advance religion? Will the actions result in excessive entanglement of the government with religion?
In his conclusions Judge Naves leaned heavily on the example set in Washington D.C., where annual prayer breakfasts are held with participation of government officials.
"Of course the Foundation believes the D.C. prayer breakfasts are a violation, and we regret that they never have been challenged," Gaylor said. "As Attorney Tiernan has pointed out, the Establishment Clause prohibits government from endorsing or promoting religion, and when government officials act in their official capacity, they are, in fact, the government."
The Colorado Appeals Court is expected to take up the case sometime during the summer.
In Wisconsin, the Foundation asked the State Ethics Board to investigate a complaint that state Rep. Susan Vergeront had used her official stationery, office, and state-paid assistant to promote a prayer breakfast in Madison. Predictably, the Ethics Board found no problem.
In Missouri, a complaint came from Cape Girardeau regarding a Mayor's Prayer Breakfast, with featured speaker Cal Thomas. A huge newspaper advertisement featured a letter signed by Mayor Francis Rhodes using his official stationery to invite "everyone" to attend. The Foundation has asked for complete information regarding the sponsorship of the function, including what public money has been expended. The affair, the Seventh Annual Mayor's Prayer Breakfast, is held in a publicly-owned facility, the "Show-Me Center."