DENVER – Colorado Governor John Hickenlooper is coming under pressure from advocates on both ends on whether to appeal a court decision against gubernatorial proclamations declaring a state Day of Prayer.
Religious-liberty groups are urging the governor to appeal the decision to the Colorado Supreme Court, while the Wisconsin-based Freedom from Religion Foundation, which brought the lawsuit, wants to see the May 10 ruling stand.
“We’re getting emails on both sides of the issue, so I know there’s a lot of interest in this,” said Fred Yarger, spokesman for Attorney General John Suthers.
A three-judge panel of the Colorado Court of Appeals ruled unanimously that the annual proclamation issued by the governor’s office for a Colorado Day of Prayer violates the state constitution because the declarations “have the primary or principal effect of endorsing religious beliefs,” said the court.
“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,” said Judge Steven Bernard in the 73-page decision.
The court sent back the case to the Denver District Court, which had ruled in favor of the state Day of Prayer, to consider whether to issue a permanent injunction against the proclamations.
The Colorado Springs-based National Day of Prayer responded with an online petition drive asking supporters to contact the governor and attorney general in support of an appeal, saying the court ruling “challenges the constitutional rights of our governors to call for prayer.”
The ruling came 10 days after this year’s National Day of Prayer, which broke records for participation, surpassing the mark set in 2002 following the 9/11 terrorist attack, said NDP spokesman Dion Elmore.
“We had the largest turnout in Washington, D.C., we’ve ever had. It was such a great event, we were on a kind of high, and then the state appeals court ruled that the observation of the Day of Prayer here in Colorado is unconstitutional,” said Elmore.
Governors in all 50 states now issue proclamations declaring a state day of prayer on the first Thursday in May, a tradition that could be imperiled by the Colorado ruling, said former U.S. Attorney for Colorado Mike Norton.
“It’s a serious matter and it’s a national matter, not just a local matter,” said Norton, now an attorney with the conservative Alliance Defense Fund. “We look at this as a precedent that, if it stands, could have a domino effect in spreading to other states.”
Dan Barker, co-president of the Freedom from Religion Foundation, said his group is also encouraging members to contact the Colorado governor. While the organization has filed complaints in every state against the Day of Prayer proclamations, he said the Colorado ruling represents its most significant victory in state court. The group also has a lawsuit pending in Arizona.
Barker said Colorado was selected because of two factors: its broad standing law, which allows individuals greater latitude in showing they have been harmed by an action, and its status as the home of the National Day of Prayer organization.
“Colorado has a very generous standing law. It’s much more broad than [that of] the federal constitution,” said Barker. “In other states, you have to have direct contact–you can’t just be mad about something.”
The group has filed legal challenges to the National Day of Prayer proclamations in the past, but lost after courts ruled they lacked standing to challenge the declarations. “They said we weren’t coerced, so we couldn’t file a lawsuit,” said Barker.
The National Day of Prayer can trace its roots to 1775, while 34 of 44 presidents have issued proclamations in support. In 1952, President Truman signed a bill setting aside a National Day of Prayer, with President Reagan later establishing the first Thursday in May for the annual observance.
The Colorado lawsuit was aimed at six proclamations issued between 2004 and 2009 by former Governors Bill Owens and Bill Ritter. In 2007, Ritter spoke at the private celebration for the Colorado Day of Prayer on the steps of the Capitol.
“A reasonable observer would think that the proclamations were issued with the governor’s support and approval,” said the decision. “As endorsement is closely related to promotion . . . we conclude that these proclamations promote religion.”
Denver District Court Judge R. Michael Mullins dismissed the case in October 2010, saying that “there is nothing controversial about a restatement of a right protected by the First Amendment of the United States Constitution.”
“[T]he [p]roclamation does not have the force and effect of law, and even if [it] did, the language does not support the foundation for a state religion, but only an acknowledgement of the rights of the citizenry as recognized as far back as the Declaration of Independence,” said Mullins in his ruling.