For years now, Colorado governors have been issuing proclamations in support of the Day of Prayer:
Several years ago, the Freedom From Religion Foundation (along with a few of their Colorado-based members) filed a lawsuit against the state in order to put a stop to that. They said the proclamations made them “feel like political outsiders” by endorsing religion, which also violated the state’s Constitution.
A lower court ruled that they had no right to sue as taxpayers, but they did have standing to sue as non-believers who faced a legal injury. Even so, the judge said the proclamations were perfectly legal so it didn’t matter.
FFRF, unhappy with that ruling, appealed. The state then cross-appealed, because they didn’t like that FFRF was given standing at all.
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.
… the six Colorado Day of Prayer proclamations [2004-09] at issue here are governmental conduct that violate the Preference Clause [of the Religious Freedom section of Colorado’s Constitution]… [The content is] predominantly religious; they lack a secular context; and their effect is government endorsement of religion as preferred over nonreligion.
In short: We know you’re using your role as Governor to endorse belief in god and you can’t do that.
Because of that ruling, all six Day of Prayer proclamations from 2004-2009 were ruled unconstitutional. It was up in the air whether governors could issue proclamations in the future. (None of this, by the way, affected the National Day of Prayer, since that was a separate issue.)
Not surprisingly, state officials appealed that decision to the State Supreme Court.
Yesterday, they issued their decision. In a 5-2 vote, the justices said FFRF did not have standing to sue, either as taxpayers or as non-believers who faced any legal injury:
Respondents do not have standing to sue the Governor for issuing annual Colorado Day of Prayer honorary proclamations. First, we hold that the use of public funds to cover the incidental overhead costs associated with issuing the honorary proclamations does not, by itself, constitute an injury sufficient to establish taxpayer standing. Second, we hold that the psychic harm endured by Respondents as a result of media coverage revealing the existence of the honorary proclamations does not, by itself, constitute an injury sufficient to establish individual standing. Accordingly, we reverse the judgment of the court of appeals. Because Respondents’ failure to establish standing is fatal to their substantive legal claim, we remand to the court of appeals with instructions to return the case to the trial court for dismissal.
The two dissenting judges wrote that denying FFRF standing was the wrong move, but added that their case should fail based on the merits. It’s a lose-lose for FFRF either way, but for different reasons.
In any case, this means the Day of Prayer proclamations can continue from here on out.
Colorado’s Attorney General-elect Cynthia Coffman issued a brief statement in support of the decision:
“This decision by the state’s high court means that like the president of the United States and other governors around the country, Colorado Governor John Hickenlooper and future Colorado governors are free to issue honorary proclamations without fear of being tied up in court by special interest groups. It was the correct ruling by the justices after careful consideration of the issues.”
FFRF no longer has any options for recourse and they’re understandably upset by the ruling because they fear the long-term ramifications:
Noted FFRF Co-President Annie Laurie Gaylor: “Under today’s precedent, if Colorado Governor John Hickenlooper decided to proclaim a state religion, no state citizen would have the right to challenge him!”
“Being formally told to pray every year by their governor is what the Colorado State Constitution so obviously sought to protect citizens from. This decision guts the no preference clause of the Colorado State Constitution saying no preference shall be ‘given by law to any religious denomination or mode of worship.’” added FFRF Co-President Dan Barker.
We can expect the state to issue another Day of Prayer proclamation sometime next May.
(Portions of this article were published earlier)