Last Thursday, a panel of state appellate court judges ruled that proclamations of a Colorado Day of Prayer by successive governors violated the ‘Preference Clause’, the state constitution’s equivalent of the Establishment Clause of the federal constitution. The judges state in their opinion what should be obvious, that not having the government endorse their praying is not tantamount to not allowing them to pray at all.

First, our decision does not affect anyone’s constitutionally protected right to pray, in public or in private, alone or in groups. “No law prevents a [citizen] who is so inclined from praying” at any time, Wallace v. Jaffree, 472 U.S. 38, 83-84 (1985) (O’Connor, J., concurring in the judgment), and religious groups are free to “organize a privately sponsored [prayer event] if they desire the company of likeminded” citizens, Lee v. Weisman, 505 U.S. 577, 629 (1992) (Souter, J., concurring).

Rather, our focus is on the idea that “religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.”

(You can read more about the Colorado case here.)

The judges’ careful explanation will not, of course, prevent a hysterical reaction to the effect that these judges are banning prayer. The first amendment to the federal constitution says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. Courts have usually been able to walk the line separating the two protections, saying that government agencies cannot take any action that could lead to, or be construed as, endorsing any form of religion (the establishment clause) while at the same time it cannot forbid people from practising their religion either (the free exercise clause). But some religious groups think that not being allowed to publicly pray in any forum, and to involve public officials and institutions as part of their effort, is violating their free exercise rights.

It is a pity that a similar ruling has not been handed down by the federal courts prohibiting the president from every year declaring a national Day of Prayer. In April 2010, the Freedom From Religion Foundation (which brought the successful suit in Colorado) did win such a case in US District Court in Wisconsin. The judge in that case Barbara Crabb made a similar obvious point:

I understand that many may disagree with that conclusion and some may even view it as a criticism of prayer or those who pray. That is unfortunate. A determination that the government may not endorse a religious message is not a determination that the message itself is harmful, unimportant or undeserving of dissemination. Rather, it is part of the effort to “carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society.” McCreary County, 545 U.S. at 882 (O’Connor, J., concurring). The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy.

The Obama administration, pandering to the religious, appealed the ruling and a year later, in April 2011, a three judge panel of the 7th Circuit US Court of Appeals overturned the ruling but on a technicality, arguing that the FFRF did not have standing to bring the case because they had not suffered any concrete injury since they were not coerced to pray and could simply ignore the proclamation.

As the attorneys for the FFRF stated, this opinion by Judge Easterbrook requiring coercion to meet the standing criterion goes counter to long-established Establishment Clause guidelines as to what counts as injury.

Judge Easterbrook’s opinion suggests that plaintiffs can only have standing if they have been coerced into religious practices. This contradicts decades of Establishment Clause jurisprudence, including strong precedent from the 7th Circuit.

His ruling raises serious concerns about if and when anyone can bring a challenge under the Establishment Clause — from prayer in school or at government meetings to nativity scenes and other religious displays on government property…

Picture this: Congress passes a law requiring the president to declare every year that the United States will have an established religion and that it will be Roman Catholicism. Who can challenge this? Nobody. What meaning can the First Amendment have if citizens are not able to enforce it?

As US District Court judge Crabb said in her original ruling upholding standing:

The primary injury plaintiffs allege is the feeling of unwelcomeness and exclusion they experience as nonreligious persons because of what they view as a message from the government that it favors Americans who pray. That injury is intangible, but it is no less concrete than the injuries in the many cases in which courts have recognized the standing of persons subjected to unwelcome religious speech.

In the Colorado case, the judge in the trial court also ruled that the FFRF did have standing to bring the case but ruled against them and in favor of the governor, declaring that the proclamations did not violate the Preference Clause. The appeals court agreed with the trial judge that the FFRF had standing but overturned the verdict and sent the case back to the trial court to determine if it should issue a permanent injunction against future proclamations.

So there things stand. It will be interesting to see what happens to the Colorado ruling. The governor has not yet decided whether it will be appealed.