A Colorado appellate panel has handed down a major ruling that the state’s Day of Prayer is unconstitutional as a violation of religious liberty under the state’s constitution. The unanimous panel ruled in favor of a challenge from the Freedom From Religion Foundation — originally filed in 2008. Judge Steve Bernard (shown here), with Judges Alan Loeb and Nancy Lichtenstein overturned a lower court decision in ruling that the day favored believers over non-believers.
The question in the case is increasingly arising in both state and federal courts: the rights of atheists and agnostics who object to proclamations and demonstration of faith. Even while nondemoninational, such proclamations associate the government with faith and the belief in God.
The panel of the Colorado Court of Appeals ruled that “[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 practice, they ruled, ran afoul of the Preference Clause of the Religious Freedom section of Colorado’s Constitution” because such proclamations are “predominantly religious; they lack a secular context; and their effect is government endorsement of religion as preferred over nonreligion.”
The federal courts have rejected this type of argument under the federal constitution — upholding ceremonial prayers to open legislative bodies etc. However, the Court noted in Wallace v. Jaffree, 472 U.S. 38, 53-54 (1985):
At one time it was thought that this right [to choose one’s religion] merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the [United States Supreme Court] has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual’s freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects – or even intolerance among “religions” – to encompass intolerance of the disbeliever and the uncertain.
Despite such language, the Court has proven fairly hostile to claims of freedom “from” religion as opposed to freedom “of” religion. Some members of the Court have long held a narrow view that the religion clauses were meant primarily to protect against the establishment of a state religion as opposed to separation church and state entirely.
The Colorado panel noted that such practices “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.” The panel distinguished cases of allowing legislative prayers and the alike:
The proclamations serve a different purpose than legislative prayers. . . .Here, the proclamations are not designed to solemnize a public occasion, and they are not part of the “ceremonial deism” that does not violate the Establishment Clause. See Elk Grove Unified School Dist., 542 U.S. at 37-44 (O’Connor, J., concurring). They are not a small part of something larger that serves a secular purpose. Rather, they stand, individually and collectively, as a call to “actual worship or prayer” that “has as its purpose placing the speaker or listener in a penitent state of mind, or that is intended to create a spiritual communion or invoke divine aid.” Id. at 40.
The proclamations serve an exclusively religious purpose. They encourage people throughout Colorado to engage in the religious practice of prayer, even if such prayer is generally nondenominational.
Indeed, these Days of Prayer are often cited as an effort to reaffirm the commitment to God in the face of increasing secularism. National leaders have portrayed secularists as akin to terrorists as a threat to the nation (here and here and here and here).
Here is the full opinion which is worth the reading: