Governor's Colorado Day of Prayer Proclamations Deemed Unconstitutional
Fall 2012

The Colorado Court of appeals has ruled that six Governor’s Colorado Day of Prayer proclamations are unconstitutional.

In Freedom from Religion Foundation, Inc v. Hickenlooper, No 10CA2559 (Colo. App. May 10, 2012), the Appeals Court held that six Colorado Day of Prayer proclamations issued between 2004 and 2009 by the Governor on the annual National Day of Prayer (the first Thursday in May) violate the Colorado Constitution. Per the request of the National Day of Prayer Task Force, first Governor Ritter, then Hickenlooper, issued proclamations that were substantially the same as template proclamations supplied by the Task Force. Each proclamation contained a biblical theme regarding prayer that changed each year. Signed by the Governor’s electronic signature, copies of the proclamations were sent to the Task Force and to individuals who requested them. The proclamations issued by governors of all 50 states were included in a book to be presented to the President. A public event was held each year on the steps of the Colorado Capitol building, at one of which Governor Ritter spoke in 2007.

The plaintiffs, Freedom from Religion Foundation (FFRF) and four Colorado taxpayers, sued, seeking to enjoin the Governor from issuing any further proclamations on the basis that the proclamations violate Article II, Section 4 of the Colorado Constitution, which reads:

The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter by guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness or justify practices inconsistent with the good order, peace or safety of the state. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship.

The court found that the Governor’s proclamations ran afoul of the last sentence, which is commonly referred to as the “Preference Clause.”

“The Preference Clause,” states the court, “like the First Amendment’s Establishment Clause, is designed to protect against sponsorship, financial support, and active involvement of the sovereign in religious activity. To provide this protection, the Preference Clause prohibits preferential treatment to religion in general or to any denomination in particular.” Because the purpose of the proclamations is to express the Governor’s support of their content, their content is predominantly religious, they lack a secular context, and their effect is governmental endorsement of religion as preferred over nonreligion, the court found the proclamations unconstitutional.

In defense, the Attorney General argued that the proclamations were like legislative prayers, which the U.S. Supreme Court has found to be constitutional. The court disagreed, concluding that the proclamations are fundamentally different than legislative prayers in scope, purpose, effect, and history. To the last point, legislative prayers have been a part of our nation’s history for over two hundred years, whereas the prayer proclamations began in 2004. Thus, for numerous reasons, the two governmental “religious expressions” are not analogous, the court decided.

Having determined that the FFRF will likely succeed on the merits of the case, the court remanded the case back to the lower court for further findings to determine whether to issue an injunction.

What are the implications of the ruling? The court’s strong qualifications suggest the holding will not be of much use beyond the facts of the case. The court went to great lengths to qualify how limited its holding is. The decision is limited to the six Colorado Day of Prayer proclamations in the record in relation to the Colorado Constitution and makes no judgment on the constitutionality of the President’s National Day of Prayer proclamations under the First Amendment. The court also states that it is not opining whether the proclamations violate the U.S. Constitution or whether differently worded proclamations would violate the Preference Clause. Finally, the opinion also has no bearing on citizens’ constitutionally-protected right to pray in private or public, alone or in groups.

The opinion should not be considered a triumph of a hard separationism, for the court acknowledged there is a legitimate place for religion in the public square. “However, it is equally clear that state power is no more to be used so as to handicap religions, than it is to favor them. The government is not required to eliminate all reference to religion from its practice or history. Rather, there is an unbroken history of official acknowledgement by all three branches of government of the role of religion in American life from at least 1789.”

As for future prayer proclamations from the Governor’s office, the court left open the possibility of constitutionally-sound proclamations: “[W]e take no position on whether proclamations worded in a substantially different manner would offend the Preference Clause.” However, given the risk (and cost) of potential litigation involving future proclamations, efforts by the National Day of Prayer Task Force to enlist Colorado’s Governor for future proclamations may not stand a prayer.