- The Washington Times - Wednesday, July 4, 2012

DENVER — Colorado is embroiled in a legal battle over the constitutionality of the National Day of Prayer proclamation.

Attorney General John W. Suthers filed a notice of appeal last month to the Colorado Supreme Court after a state appeals court declared the proclamation unconstitutional, saying it represents a government endorsement of religion.

The president and governors in all 50 states, including Colorado, for years have issued proclamations declaring the National Day of Prayer on the first Thursday in May. The event is run by the National Day of Prayer Task Force in Colorado Springs.

In his petition, Mr. Suthers argued that the governor issues hundreds of ceremonial proclamations every year, none of which compels citizens to support or comply with the event or cause being honored.

“By acknowledging various events, anniversaries, and civic accomplishments, the governor is by no means ‘endorsing’ or ‘favoring’ every one of the individuals recognized or the causes that the requesting groups support,” Mr. Suthers said in the 24-page filing. “Rather, honorary proclamations simply acknowledge the activities of individuals and civic groups.”

Patrick Elliott, staff attorney with the Freedom From Religion Foundation, which filed the lawsuit in 2008, said the lower-court ruling should stand.

“The Colorado Day of Prayer was found to be unconstitutional,” Mr. Elliott said. “There’s no need for the state Supreme Court to review that decision, as it was well-backed by precedent. If the court does decide to take the case, we feel we will prevail.”

The Colorado Court of Appeals ruled May 10 that “a reasonable observer would conclude that [the proclamations] send the message that those who pray are favored members of the Colorado political community, and that those who do not pray do not enjoy that favored status.”

The decision represents the Wisconsin-based atheist group’s biggest legal victory on the issue since 2010, when District Court Judge Barbara B. Crabb in Wisconsin ruled the National Day of Prayer unconstitutional, saying the same law “that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy.”

A three-judge panel of the 7th Circuit Court of Appeals overturned her decision in April 2011, saying that the foundation lacked standing to sue in that “a feeling of alienation cannot suffice as injury.”

The foundation has submitted complaints to governors in all 50 states over the proclamations and has filed lawsuits in Colorado and Arizona. In May, the group protested the National Day of Prayer by paying for three billboards in Denver and Colorado Springs bearing the message, “God Fixation Won’t Fix This Nation.”

Denver District Court Judge R. Michael Mullins ruled against the foundation in October 2010, holding that the Colorado Day of Prayer proclamation “does not insist or encourage anyone to pray or not pray. That issue is left up to the individual.”

This year’s National Day of Prayer event May 3 broke records for participation, surpassing the mark set in 2002 after the Sept. 11 terrorist attack, said National Day of Prayer spokesman Dion Elmore.

The court of appeals ruled the event unconstitutional a week later. The task force responded with an email and letter-writing campaign urging Mr. Suthers and Gov. John Hickenlooper to appeal the ruling to the state Supreme Court.

“This is an important first step, but the process of law can be lengthy, so we must continue supporting this court battle on our knees,” said the National Day of Prayer Task Force in a website post last week.

Mr. Elliott said the foundation would likely file a response to the attorney general’s petition before the high court this month.

“Certainly governments like to appeal to certain constituencies with these proclamations instead of having restraint in their official capacity,” Mr. Elliott said.

The National Day of Prayer traces its roots to 1775, when the Continental Congress set aside a day for prayer. In 1952, President Truman set aside an annual day of prayer, and in 1988, President Reagan set the date as the first Thursday in May.