Colorado Court Strikes Down State’s Day Of Prayer

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:

50 thoughts on “Colorado Court Strikes Down State’s Day Of Prayer”

  1. @ Tony C: “I am an atheist. I want a “National Day of Atheism”, which is otherwise just as innocuous as the “National Day of Prayer.” Do you think anybody will object to that?”

    Tony C, Someone actually WILL object to that. And YOU will get struck by LIGHTENING and the EARTH will open up and swallow you. OK?

    So wise up: Don’t even think about it.

  2. This is an intelligent, thorough and well-reasoned opinion. It was also correct.

  3. America already has a designated “day of prayer,” every day, at local, state, and federal levels, in absolute contravention of the Constitution’s prohibition against government involvement in animism of any kind. I can remember when this “day of prayer” began back in the 1950s during the Eisenhower/McCarthy Reign of Error against free thinking of any kind whatsoever. In my own words, I call it:

    “The Boobie Pledge of Subservience”
    (from Fernando Po. U.S.A., America’s post-linguistic retreat to Plato’s Cave)

    I offer my obedience
    I pledge undying love
    To any symbol formed to serve
    The needs of those above
    Who rightly feel that I deserve
    The fist inside the glove

    I stand and mumble publicly
    With fear upon my brow
    Lest some mistake my silence for
    An insufficient vow
    Let all who see and hear me know
    How easily I cow

    Authority need never fear
    I swear I know my place
    I pledge to take the gauntlet slapped
    Across my beaten face
    The Seizure Class knows I’ll accept
    Chastisement with good grace

    About such things as freedom, I
    Have not the slightest clue
    By birth and class it’s come to THEM
    I know that it’s THEIR due
    To hand me down instructions as
    To just what I must do

    And so I promise faithfully
    To play my scripted part
    Each day I’ll chant Two Minutes’ Hate
    To finish, from the start
    Until I love BIG BROTHER from
    The bottom of my heart

    I swear to do as I am told
    I will not think too deep
    I’ll huddle in conformity
    Just like the other sheep
    To take my whipping like a slave
    And utter not a peep

    I pledge to stand up every day
    Within my schoolroom class
    And mouth my mantras on demand
    Without backtalk or sass
    Until the program makes me a
    Compliant, docile ass

    I swear upon my loyalty
    To stuff my head with fat
    And place my nation “under” “GAWD!”
    Supinely prone and flat
    With me then going “down” “beneath”
    And “lower” “under” that

    I swear to go to Sunday School
    Upon the public dime
    Each morning in my homeroom class
    I’ll mouth my dreary rhyme
    And if I leave out words
    THEY can Indict me for my crime

    I pledge and vow and promise that
    I’ll swear from dusk to dawn
    And never fail to chant or moan;
    To never blink or yawn
    And with each cry of “GAWD IZ GRATE!”
    My own soul I will pawn

    The Papal bulls and fatwas tell
    Me all I need to know
    Which isn’t much because I see
    I’ve nowhere left to go
    I swear to never set my sails
    Against the winds that blow

    The Popes, Imams, and Rabbis tell
    Me what and where and how
    The master’s overseer tells
    Me which row I must plow;
    To toady, genuflect, and crawl;
    To grovel, scrape and bow

    I’ll train to “hurry up and wait”
    And do the Bulgar drills
    To stand at rapt attention dressed
    In military frills
    Just point me and I’ll drop the bomb
    No matter whom it kills

    I pledge and promise on my word
    To do the things I ought
    To work for lower wages
    So my labor comes to naught
    I swear to vote Republicrat
    To prove I can be bought

    The Party keeps us all at war
    Which makes us quake with fear
    And so we give up all those rights
    Our ancestors held dear
    Which saves our enemies the need
    To take them from us here

    But I won’t think of bygone days
    The past I’ll just rewrite
    I’ll call my history “old news”
    To make it pat and trite
    Which sleight of mind will help me keep
    Its lessons out of sight

    With this capitulation I
    Agree to sell my pride
    Before I even own it or
    It grows too big to slide
    Into the shabby, craven cave
    Wherein I must reside

    Michael Murry, “The Misfortune Teller,” Copyright 2005

    America already has a local, state, and national “prayer day,” every day. That one has done enough harm already. America doesn’t need any more subservience than it already has.

  4. Arthur Randolph Erb,

    One: Charles Darwin had better things to do with his time than worry about infantile animism, which he dismissively referred to as “the feelings of my female relatives.” Who buried him where after he died has no bearing upon his scientific — i.e., decidedly non-animist — work.

    Two: If one subscribes to the fact of Evolution through Natural Selection, then one cannot, without a severe relapse into Orwellian doublethink simultaneously believe that an invisible, fickle, human-like “personality” created the world and orders its operations down to the molecule. Please make up your mind as to what you think you think and what you think you believe.

    Three: Persons who live in the glass house of “belief” should not throw “stupid” stones at modern secular people who walk in the clear sunshine of fact and reason.

    Four: since you do not seem to understand Darwin’s work or why animist “believers” continue viciously attacking him more than a century after he revolutionized scientific thought — and, as a byproduct made their primitive animism totally irrelevant — then you should quit trying to pose as a “sensible” “atheist,” since your comments demonstrate a failure to appreciate the complete lack of interest free thinkers have in anything related to “theism.”

  5. Days of prayer absolutely convey a message of endorsing a religion. The non-denominational thing is just a wink and a nod. I mean, the proclamations from 2005-2009 contained Bible verses.

  6. How about if the states adopt a “Darwin’s Day,” once a month, celebrating the immortal discovery of Evolution by Natural Selection? Honored spokespersons could read the following excerpt from John Dewey’s book, The Influence of Darwin on Philosophy and Other Essays in Contemporary Thought (1910):

    “Old ideas give way slowly; for they are more than abstract logical forms and categories. They are habits, predispositions, deeply ingrained attitudes of aversion and preference. Moreover, the conviction persists, though history shows it to be a hallucination, that all the questions that the human mind has asked are questions that can be answered in terms of the alternatives that the questions themselves present. But in fact intellectual progress usually occurs through sheer abandonment of questions together with both of the alternatives they assume, an abandonment that results from their decreasing vitality and a change of current interests. We do not solve them: we get over them [emphasis added]. Old questions are solved by disappearing, evaporating, while new questions corresponding to the changed attitude of endeavor and preference take their place. Doubtless the greatest dissolvent in contemporary thought of old questions, the greatest precipitant of new methods, new intentions, new problems, is the one effected by the scientific revolution that found its climax in the Origin of Species.”

    Way past time to get over organized animism, especially at the state and national level. It leads nowhere but back to Plato’s Cave.

    1. Having a Darwin Day would not be the same as having an Atheist Day since Darwin was a good believer in the Anglican Church and is buried in Westminster Abbey. it is absurd to think that a belief in evolution means atheism and that idea is as stupid as the idea that believing in evolution means you cannot be a Christian. Leave the ignoracne and stupidity on the other side, NOT on the atheist side please.

      to Gene H and Oro Lee I suggest that we have an award named after Prof Turley for such a great riposte as Cease and Deist. Oro Lee should be the first recipient for embodiying Turley’s sense of clever humor.

  7. Men invent “gawds” in their own image and then claim that these fantastical imaginings give some men power over other men — and over women, too. The Greeks had a myth that explains this phenomenon: Pygmalion’s Frenzy, about a sculptor who created a statue, fell in love with it, and then became despondent because the lifeless creation refused to love him in return. In America, we have Pygmalion politicians, or pygmies, for short.

  8. Arthur Randolph Erb,

    “No one ever does evil quite so cheerfully or completely as when he does it from religious conviction.” — Blaise Pascal

    Only a fool would take an animist at his word that he really intends no coercion by the state, but only a little harmless suggesting.

  9. Arthur Randolph Erb,

    If animism does no good, then we don’t need the harm it causes. If it does no harm, then we don’t need yet another useless placebo — we have more than enough of those already.

  10. Oro Lee,

    I’ve been very busy today, so this is the first chance I’ve had to look at the blog. Rather than try to top perfection, I’ll simply stipulate that you won the thread for merely suggesting “cease and deist”. Bravo, sir. Well played indeed.

  11. In America, anyone … anywhere … and any time … can pray to whatever God he (or she) chooses. (There may be a lot of silent praying that goes on before exams, for example.)

    Why it is so-o important to SOME people that our civil government should involve itself with our private beliefs is beyond me. No one is keeping them from praying, and that’s not really what they’re concerned about here. What they really want is for everyone to conform to THEIR particular religious beliefs.

    It never works out well when the government involves itself with our spiritual (or non-spiritual) lives.


    The sad, long and violent history of savage wars over religion in this world should be a lesson easily learned by all but the most dense.

  12. Tony C. Your oath would work for me. It’s pretty close to the one I used (can’t remember – too long ago) Nobody is interested in my oath any more, or maybe they don’t care whether or not I tell the truth.

  13. I think it is a pity that this is even an issue. I believe an action like this serves only to bolster the fictitious “war on religion” all the right wing holy rollers are always carrying on and on about. They will see it as oppression, not opposition, as an attack on religion rather then a defensive move made to protect individual freedoms. really anytime you react to the religious right. all they hear are rattling sabers, such is the mind set of the zealot. What end is served by denying them a “day of prayer” other than to incite anonymity and resentment. Let them have their day, Ignore it. The way to defeat this insanity is to offer no reaction to their madness and work to outshine it with applied reason and logic.

    1. Finally another person who has some common sense. Thanks D20.

  14. @Arthur: I am an atheist. I want a “National Day of Atheism”, which is otherwise just as innocuous as the “National Day of Prayer.” Do you think anybody will object to that?

    1. Tony C sign me up for that day too. We have at least one atheist in Congress, and he can and probably will sponsor it. I don’t know if it will pass given this Congress.

  15. Oh, professor, when are you going to start using a spell-checker?

    “Even while nondemoninational,…”

    Or maybe this is proof that you are ruled by Satan! Yes, that’s it! You want demons to rule our country!

  16. @Bettylath: tating my own oath meant something, at least to me. I wonder what other non-Christians do.

    As an atheist, in court as a witness I was asked by the judge to “solemnly swear.” Which was okay by me.

  17. “If the clause were meant merely to mitigate against the establishment of a State religion, then it would be easily
    neutralized by the political pressure that would make public professions of Christianity necessary to obtain public office. ”

    But that would violate Article VI Section 3.

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