DENVER—Gov. John Hickenlooper has asked the Colorado Supreme Court to overturn a lower-court’s decision banning the Colorado Day of Prayer proclamation.
The petition, filed Thursday, argues that the Colorado Court of Appeals erred when it ruled May 10 that the proclamation amounts to an endorsement of religion, noting that the governor issues hundreds of ceremonial proclamations every year.
“By acknowledging various events, anniversaries, and civic accomplishments, the governor is by no means ‘endorsing’ or ‘favoring’ every one of the individuals recognized or the causes that the requesting groups support,” said Colorado Attorney General John Suthers in the 24-page filing. “Rather, honorary proclamations simply acknowledge the activities of individual and civic groups.”
The president and governors in 50 states have for years issued annual proclamations supporting the National Day of Prayer, which was established by Congress in 1952. The event is run by the National Day of Prayer Task Force in Colorado Springs.
The Freedom from Religion Foundation filed a lawsuit against the Colorado proclamation in 2008, arguing that the declarations violate the Constitution by granting favored status on religion over non-religion. The Wisconsin-based group has challenged the proclamations in every state, according to foundation president Dan Barker.
The Colorado Court of Appeals victory represents what may be the foundation’s biggest state victory to date in its battle against the proclamations. In 2010, a federal judge ruled the National Day of Prayer unconstitutional, saying that the “same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy,” but a three-judge panel of the Seventh Circuit Court of Appeals overturned her decision in April 2011.
The Seventh Circuit ruled that “no one is obliged to pray, any more than a person would be obliged to hand over his money if the President asked all citizens to support the Red Cross and other charities.”
In its decision, the Colorado Court of Appeals ruled that a “reasonable observer would conclude that [the proclamations] send the message that those who pray are favored members of the Colorado’s political community, and that those who do not pray do not enjoy that favored status.”
Suthers challenged the ruling on constitutional grounds, arguing in Thursday’s petition that the court’s “conclusion to the contrary is inconsistent with both the federal Establishment Clause jurisprudence and the interpretation of the Preference Clause adopted by this Court.”
Suthers also took issue with the appeals court’s granting of “taxpayer standing” to the plaintiffs, who include the foundation and several Colorado residents. Taxpayer standing applies to “those who are able to demonstrate that their tax dollars have been spent in an unconstitutional manner,” he said.
No evidence was presented outlining the expenditure of any tax dollars for the proclamation, and even if there had been, the expenses would have been so minor as to fall under the de minimus standard, which disregards trifling expenditures, said Suthers.
“To hold otherwise, as the court of appeals did in this case, would be to throw open the doors of Colorado’s state courts to anyone who disagreed with any governmental action,” he said. “No matter how little time or energy a state employee or official’s action takes, some miniscule portion of his salary is earned during that period.”
The Colorado Supreme Court is expected to decide within the next few months whether to hear the case. If the court declines to take it, then the court of appeals ruling stands, barring another appeal.
The foundation also has a lawsuit against the National Day of Prayer proclamation pending in Arizona.
The National Day of Prayer tradition traces its roots to 1775, when the Continental Congress set aside a day for prayer. In 1905, Colorado Gov. Jesse McDonald exhorted Coloradans to “turn to the Lord in prayer,” according to the National Day of Prayer Task Force.