A Colorado state appeals court has unanimously ruled that an official declaration of a day of prayer issued by Gov. Bill Ritter is unconstitutional. The case was based on the “preference clause” of the Colorado Constitution rather than the Establishment Clause of the U.S. Constitution, though it did draw on federal precedent in some of its reasoning. You can read the full ruling here.
As a result, we conclude, for the reasons that we explain in detail below, that the six Colorado Day of Prayer proclamations at issue here are governmental conduct that violates the Preference Clause. We reach that conclusion because the purpose of these particular proclamations is to express the Governor’s support for their content; their content is predominantly religious; they lack a secular context; and their effect is government endorsement of
religion as preferred over nonreligion.
The key to the case is how a reasonable observer would view such a declaration:
Looking through the eyes of a reasonable observer, we conclude that the Colorado Day of Prayer proclamations at issue here have the primary or principal effect of endorsing religious beliefs because they “convey or attempt to convey a message that religion or a particular religious belief is favored or preferred.” We reach this conclusion because:
• The proclamations convey a predominantly religious message, which was supported from 2004 to 2008 by the inclusion of biblical verses and religious themes.
• They have little secular content.
• They state that individuals will “unite in prayer.”
• They bear the Governor’s imprimatur, in the form of his signature and seal.
• Unlike the crèche in the Christmas display found to pass constitutional muster in Lynch, or the monument displaying
the Ten Commandments similarly approved in Freedom from Religion Found., Inc., there is no doubt here that the
religious message is attributed to the Governor.
• Governor Ritter appeared and spoke at the private celebration of the Colorado Day of Prayer that was held on the steps of the Capitol in 2007.
• A reasonable observer would think that the proclamations were issued with the Governor’s support and approval.
• They are not issued in a manner that places them in a context with other proclamations that convey a secular message.
I’m sure the decision will be appealed, but so far it’s a major victory.