Religious Freedom Advocates Urge Hickenlooper to Appeal Anti-Prayer Ruling

May 21, 2012

A three-judge panel ruled unanimously that the annual Colorado Day of Prayer proclamation is unconstitutional

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.

Comments made by visitors are not representative of The Colorado Observer staff.

11 Responses to Religious Freedom Advocates Urge Hickenlooper to Appeal Anti-Prayer Ruling

  1. Gladys Woynowskie
    May 21, 2012 at 11:25 am

    To say that the government can not speak in favor of religion based on the 1st Amendment is absurd. If the Constitution is not government, then what is? The Constitution, as government, promotes religion in America in that it protects it from any infringement. In the same way that free speech is promoted, in the same way that free press is promoted, so is religion promoted. These are things that America supports. There is not only one newspaper supported, not only one kind of speech supported, nor only one kind of religion supported. All are supported.
    Now if there were an anti-speech group, just as there is an anti-God group, would we allow them to use the government to end all talking? The talking groups allow all kinds of talking, even silence. But the non-talking group is intolerant of all talking, making them the only group left. So with American’s freedom of religion– with respect to all groups who worship God. These groups are different in almost all ways except one, they all worship God. Where is the common ground between the God rejectors and all the others? Only in this, those who worship God will tolerate non-participation. This tolerance is not reciprocated by the non-worshipers.

    • Sensil
      May 22, 2012 at 3:00 pm

      Thanks for your comment. The First Amendment prohibits Congress from making a law “abridging the freedom of speech, or of the press”. But the First Amendment’s treatment of religion is different – it says two things: “Congress shall make no law respecting an establishment of religion” – a very different prohibition from that applied to speech and the press. So, in conflating the freedom of speech, the press and religion while disregarding the fact that our Constitutional rights in respect of each are very different, your argument is somewhat missing the point.
      That said, there is nothing in the judgement that restricts participation in religion by anybody except the government. As you know, the judgement itself states (on page 2) “…our decision does not affect anyone’s constitutionally protected right to pray, in public or in private, alone or in groups.”
      The suggestion that it does is just misinformation.
      Oh, and, finally, your last comment “This tolerance is not reciprocated by the non-worshipers.” I am a non-worshipper. I love that you have the right to worship God. I celebrate it! So there. From this unscientific sample of one, you’re 100% out-of-line. So, go ahead. Pray. Enjoy. Just don’t ask me to pay for it.

      • Gladys Woynowskie
        May 23, 2012 at 9:25 pm

        Sensil, I did not conflate the three together—the writers of the 1st amendment did that. If they were VERY DIFFERENT they wouldn’t be in the same paragraph.
        You wrote: “…our decision does not affect anyone’s constitutionally protected right to pray, in public or in private, alone or in groups.”
        Except those who hold a government job, or one that is subject to lawsuit by those who are offended by God. Those are the only ones whose constitutionally protected rights are affected.
        I think you are not aware of your own intolerance. You will allow me to worship all I want as long as it is imperceptible. If that is tolerance, what is intolerance?

    • Matt
      May 22, 2012 at 5:08 pm

      If a person doesn’t support a government run call to prayer, that doesn’t make them a ‘God rejector’ or ‘non worshipper’, as you’ve brazenly labeled them. Many religious folks respect the Constitution’s establishment clause. State and Federal courts across the nation have, time and time again, agreed with the traditional understanding of the establishment clause, which aligns directly with the FFRF’s take on it, and they do it for a good reason.

      • Mathew gGoldstein
        May 22, 2012 at 7:18 pm

        Matt is correct. It is also true that many Americans do not worship any gods and that some Americans are convinced that gods are fictions. People who believe that there are no gods are going to be inclined to consider it somewhat presumptuous, and maybe even a bit rude, for their governments to be declaring that all citizens should pray. It is proper for individuals and non-government institutions to advocate for their god beliefs, religious worship, and/or prayer. Government has a special relationship with its citizens that is undermined by government assuming the role of advocating for majority religious practices and beliefs against minority beliefs. The common ground is government silence, there Is no need for government to speak either for or against any religious belief or practice.

        • Gladys Woynowskie
          May 23, 2012 at 9:32 pm

          The Day of Prayer doesn’t infringe on nonpray-ers any more than Children’s Health Foundation Day infringes on the unhealthy children. You imply that to support one thing is to oppose another, leaving only two choices, each mutually exclusive.
          If the government were doing as you suggest I would agree with you. If the government were saying everyone must attend the Baptist church or the Buddhist sanctuary, and the government required the priests to submit their sermons for approval by a bureaucrat, as is required in China, then we should all be concerned. But we are nowhere near that. Colorado designating a Day of Prayer only disturbs the sensibilities of those who are offended by any governmental recognition of a superior being.
          As you said in your final sentence, silence is what will satisfy you, a silence that reflects no religion whatsoever. Again there is a big difference between a government that prescribes methods of spiritual practice and a government that is supportive of religion in general. Apparently to you, to support any religion is offensive. In that case you will need to pass an amendment that proclaims the US government as secular, much like France’s first article.

      • Gladys Woynowskie
        May 23, 2012 at 9:28 pm

        A day of prayer is inclusive for all religions. There is no prescribed methods of worship, simply an national recognition that those who do worship will, by that means, bring benefit to this country. The Freedom From Religion Foundation is not satisfied to hold their own beliefs, they desire to prescribe methods of spiritual behavior on others. The FFRF is not inclusive—by its very title it is exclusive, excluding all types of religion. If FFRF and all the judges you speak of are correct, I find it amazing that the Founders were so unclear. They could have said, as the French Constitution does in its first article: “France is a secular (laïque) state, and guarantees equality regardless of religion and respect for all beliefs.”
        America is not a secular state—it recognizes, protects, and honors all religions.

  2. Chuck Berry
    May 22, 2012 at 2:39 pm

    Of course the “rights of the citizenry as recognized as far back as the Declaration of Independence” let people pray to any god they choose, and not just on the 1st Thursday in May but every day. But do the religious really need the government to hold their hand while they pray? Government involvement in selecting and promoting certain practices of certain religions is not only unconstitutional, it is divisive and makes some of the citizens it serves feel excluded by what should be the government of ALL, not just of the religious majority in power at the time.

    • Gladys Woynowskie
      May 23, 2012 at 9:34 pm

      Chuck, Just what religion is being promoted by Colorado’s Day of Prayer?
      People who are intolerant of others are divisive.
      Feeling excluded is a human condition that occurs sporadically and no government can be tasked with the responsibility to eradicate that condition.

  3. May 23, 2012 at 9:44 am

    National Day of Prayer — then National Day of Atonement — How about the National Month of Ramadan? Where do you draw the line? The Colorado Court of Appeals drew the line clearly, reasonably, and most importantly Constitutionally.

    Let it stand.

  4. Ruth Walker
    May 23, 2012 at 12:17 pm

    A national or state day of prayer is clearly inappropriate (and those who REALLY “do unto others as they would have them do” recognize it without a blink.

    I remember that my mother, a life-long Presbyterian, knew a national day of prayer was wrong when Billie Graham first pushed for it, but with the McCarthyism of the day, even the religious dared not speak out for fear of being called an atheist communist. (Never mind that the non-religous aspect of Russian Communism was backlash from terrible mistreatment by the Orthodox Church in cahoots with the Czars!)

    So many people mischaracterize the Constitution! (Some of the confusion may be because there WERE some state religions but no federal one when our country was born. The Fourteenth Amendment required all levels of government to protect those same federal freedoms.)

    The Supreme Court was clear when ruling unanimously in 1878 (Reynolds v United States) that “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices” else it would “permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

    Far too many Americans want a theocracy. Some even rewrite history to pretend that it has always been one.


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