Andrew L. Seidel
America has a long and controversial history of mixing prayer with government. The National Day of Prayer (“NDOP”) is one of the latest controversies in this history. In April 2010, the Freedom from Religion Foundation (“FFRF”), a Wisconsin-based group advocating for the separation of church and state, won a federal lawsuit that found the National Day of Prayer unconstitutional. Recently, the Seventh Circuit overturned the NDOP court decision—not on the merits but for lack of standing. This paper examines the arguments the NDOP court made regarding the merits, not standing, and how those arguments might apply to a case here in Colorado. As such, the Seventh Circuit decision is irrelevant. Additionally, the Seventh Circuit has been petitioned for an en banc decision on FFRF’s standing. The NDOP court held that “the federal government may not endorse prayer in a statute.” This holding left open the issue of whether the government may endorse prayer by other means, such as issuing prayer proclamations.
That issue is now being decided in Colorado courts. Last October, FFRF argued that Governor Ritter’s prayer proclamations “I, Bill Ritter, Jr., Governor of the State of Colorado, do hereby proclaim [date], COLORADO DAY OF PRAYER in the State of Colorado,” violated the Colorado Constitution. The Ritter court disagreed and ordered summary judgment for the state. FFRF has appealed. The purpose of this paper is to briefly examine the constitutionality of prayer proclamations in the context of these two lawsuits and investigate the likelihood of a successful appeal in the Colorado case.
Endorsement or Mere Acknowledgment?
Colorado courts look “to the Establishment Clause of the First Amendment to the United States Constitution and the body of federal cases that have construed it” when interpreting Colorado’s Preference Clause. Analysis of Establishment Clause challenges is somewhat convoluted. The Lemon test is used most often. To survive Lemon, the law must have a secular purpose, a primary effect that neither advances nor inhibits religion, and not excessively entangle religion and government. The Ritter court found that the purpose and primary effect of the proclamations were merely “to acknowledge the events of the National Day of Prayer Task Force.” It also found no excessive entanglement because the proclamations did not facilitate the Colorado Day of Prayer festivities, which were “planned well in advance of the Proclamation’s issuance.”
The Ritter court used the magic word “acknowledge” because Supreme Court precedents have held that acknowledgment of the role of religion in American life is a valid secular purpose under the Establishment Clause. Acknowledgement of religion is constitutional, endorsement of religion is not, and “the line between ‘acknowledgment’ and ‘endorsement’ is a fine one.” A challenged action is more likely to be recognized as an acknowledgement of religion and not an endorsement if it is part of a larger secular display or message, for instance, a nativity scene that is part of a broader holiday display.
On appeal FFRF will likely argue that these proclamations are not acknowledging the role of religion in American life; they are endorsing prayer events whose sole purpose is to promote this “intrinsically religious” activity. First, the “events of the National Day of Prayer Task Force” are all prayer events. Second, the proclamations pay lip service to religious freedom while stipulating that the “purpose of the private organizers of the Colorado Day of Prayer . . . is to encourage prayer.” Furthermore, this was part of a celebration of the National Day of Prayer, a holiday that was declared an unconstitutional violation of the First Amendment. Lastly, if the government was truly interested in acknowledging the role of religion in America, it could have proclaimed a “Day of Religious Freedom” rather than promoting an exclusively religious practice.
Are Gubernatorial Proclamations Analogous to Presidential Proclamations of Thanksgiving?
In Marsh v. Chambers, the Supreme Court did not apply the Lemon test to legislative prayer in Nebraska. Instead, the Court upheld the state legislative prayer by comparing it to the long, unique history of Congressional prayer. Under Marsh, state action may be constitutional if it is analogous to federal action with a long history tied to the founding of the country. The Ritter court did not apply the Marsh test because the governor’s prayer proclamations have been going on for only six years. However, the issue could come up on appeal. Colorado may try to argue that Marsh applies because the prayer proclamations are analogous to George Washington’s presidential thanksgiving proclamations.
There are three problems with analogizing gubernatorial prayer proclamations to thanksgiving prayer proclamations. First, the muddled history of thanksgiving proclamations does not necessarily support upholding prayer proclamations. Second, a long history alone is not a sufficient justification. Third, gubernatorial prayer proclamations are distinguishable from presidential thanksgiving proclamations.
History shows that some founders thought thanksgiving proclamations to be of dubious constitutionality. James Madison thought the proclamations “imply and certainly nourish the erroneous idea of a national religion.” Thomas Jefferson, “steadfastly refused to issue Thanksgiving proclamations of any kind, in part because he thought they violated the Religion Clauses.”
Even if the history were clear, “historical patterns cannot justify contemporary violations of constitutional guarantees.” Historically acceptable practices can still violate the values protected by the Establishment Clause. We see this with longstanding race-based and gender-based discrimination. Executive proclamations involving prayer have a dubious constitutional history (see above) and the Establishment Clause has had some suspect interpretations. Justice Story wrote that the purpose of the Establishment Clause was “not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects.” This interpretation brings George Orwell’s Animal Farm to mind, where the ruling pigs declare that “all animals are equal but some are more equal than others.” History can get constitutional values wrong; this is why the Court has ruled that “no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.”
Gubernatorial prayer proclamations are distinguishable from thanksgiving proclamations. The NDOP court noted three major differences in comparing the thanksgiving proclamations to the NDOP. The differences also distinguish prayer and thanksgiving proclamations. First, thanksgiving proclamations are secular; “one can be thankful without subscribing to any particular religious belief.” Giving thanks can be secular, but there is little secular value in prayer which, the NDOP defendants admitted, “is an inherently religious exercise.” Second, “a President’s statements of his own beliefs about prayer are less likely to be viewed as an official endorsement.” This may be true of thanksgiving proclamations, but it is tenuous to call the prayer proclamations statements of the Governor’s own beliefs. Each proclamation invokes the title, “Governor of the State of Colorado,” which is either superfluous or careless if he is merely stating personal views. He is using his titular power to declare a “DAY OF PRAYER” for the whole state. His personal beliefs do not grant him such power; only his democratically given power as chief executive for the state gives him such power. The third difference between the NDOP and thanksgiving proclamations is that the latter “are not an attempt to help particular religious groups organize.” The same cannot be said of the gubernatorial proclamations. First of all, “the Governor’s office assumes these proclamations are used, at least by some requestors, to promote their activities.” Each proclamation is accompanied by an actual prayer, organized by the NDOP Task Force. Additionally, “the National Day of Prayer Task Force uses these proclamations as evidence of governmental support.” In sum, if the issue is raised, FFRF should be able to distinguish the gubernatorial prayer proclamations from presidential proclamations of thanksgiving.
Government and prayer is a controversial mix. The National Day of Prayer decision is being appealed, and FFRF is appealing the constitutionality of governmental prayer proclamations. This latter appeal has a reasonable chance of success. The purpose and effect of the proclamations, despite the Ritter court’s use of the magic word “acknowledge,” seem to be religious. The historical record of these proclamations is non-existent, therefore Marsh does not apply unless Colorado tries to take advantage of the longer history of thanksgiving proclamations by analogy. If so, they will probably fail. Whatever the appeal’s outcome, it will be an interesting and influential opinion for Colorado. It certainly will not be the last legal challenge to government and prayer.
 Andrew L. Seidel is a Colorado attorney who just finished his LLM in Natural Resources law at DU. He was the Erik Bluemel International Environmental Law Scholar at DU and received the Haber J. McCarthy Award for Excellence in Environmental Law while getting his JD at Tulane University Law School. He is currently seeking employment in Colorado.
 An early example of prayer and government colliding can be found in James Madison’s writing: “The establishment of the chaplainship to Cong[ress] is a palpable violation of equal rights, as well as of Constitutional principles…” James Madison, Detached Memorandum (ca. 1820).
 Congress created The National Day of Prayer as a holiday in 1952 by federal statute, 36 U.S.C. § 119, declaring that “[t]he President shall set aside and proclaim a suitable day each year, other than a Sunday, as a National Day of Prayer, on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.” In 1988, Congress amended the statute to set the NDOP for the first Thursday in May.
In addition to the two cases and possible appeal discussed in this article, a third case involving prayer was brought in Colorado. In February, the Military Religious Freedom Foundation sued the United States Air Force Academy in federal court to stop the National Prayer Luncheon. Mullin v. Gould, No. 1:11-cv-00247-REB (D. Colo. Feb. 9, 2011).
 Freedom from Religion Found. v. Obama (FFRF), 705 F. Supp. 2d 1039 (W.D. Wis. 2010).
 Freedom from Religion Found. v. Obama (FFRF Appeal), No. 10-1973, 2011 WL 1405156 (7th Cir. Apr. 14, 2011).
 FFRF files en banc review over National Day of Prayer, Freedom from Religion Foundation (May 31, 2011), available at http://ffrf.org/news/releases/ffrf-sees-en-banc-review-over-national-day-of-prayer/.
 FFRF, 705 F. Supp. 2d at 1070.
 Freedom From Religion Found. v. Ritter (Ritter), No. 08CV9799, at 4 (Den. Dist. Ct. Oct. 28, 2010), available at http://ffrf.org/uploads/legal/Colo-ndp-order.pdf.
 FFRF Colorado Day of Prayer decision appealed, Freethought Today, Vol. 27, No. 9 (November, 2010), available at http://ffrf.org/publications/freethought-today/articles/ffrf-colorado-day-of-prayer-decision-appealed/.
 State v. Freedom from Religion Found., 898 P.2d 1013, 1019 (Colo. 1995).
 Lemon v. Kurtzman, 403 U.S. 602 (1971).
 Id. at 612-613.
 Ritter, No. 08CV9799 at 11, 13 (emphasis added).
 Id. at 13.
 Lynch v. Donnelly, 465 U.S. 668, 674 (1984).
 FFRF, 705 F. Supp. 2d at 1055.
 Lynch, 465 U.S. at 679-680.
 N.C. Civil Liberties Union Legal Found. v. Constangy, 947 F.2d 1145, 1150 (4th Cir. 1991).
 Ritter, No. 08CV9799 at 5.
 FFRF, 705 F. Supp. 2d at 1063.
 Id. at 1056.
 Marsh v. Chambers, 463 U.S. 783 (1983).
 Id. at 786-790.
 History alone is insufficient. “Unique history” is needed. Legislative prayer is a particular case because the first Congress approved of chaplains and the history was unbroken from that time. Id. at 791.
 Ritter, No. 08CV9799 at 14.
 These proclamations refer to the act of giving thanks, not the November holiday. This article never refers to the November holiday. Unless capitalized in a direct quote I will not capitalize thanksgiving.
 The defendants attempted this same analogy in the National Day of Prayer case, claiming that is was part of the same practice George Washington instituted so many years ago. FFRF, 705 F. Supp. 2d at 1061-1064.
 James Madison issued thanksgiving proclamations while in office, however, he regretted doing so and thought the proclamations unconstitutional. Lee v. Weisman, 505 U.S. 577, 624-625 (1992)(Souter, J., concurring)
 Id. at 623; see also Letter from Thomas Jefferson to Rev. Samuel Miller (Jan. 23, 1808), available at http://www.stephenjaygould.org/ctrl/jefferson_miller.html. “[I]t is only proposed that I should recommend, not prescribe a day of fasting & prayer. That is, that I should indirectly assume to the U. S. an authority over religious exercises which the Constitution has directly precluded them from. It must be meant too that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion. And does the change in the nature of the penalty make the recommendation the less a law of conduct for those to whom it is directed?” Id.
 Marsh, 463 U.S. at 790.
 See Allegheny v. ACLU, 492 U.S. 573, 630 (O’Connor, J., concurring).
 “[H]istorical acceptance of racial or gender based discrimination does not immunize such practices from scrutiny under the Fourteenth Amendment.” Id.
 McCreary Cnty. v. ACLU, 545 U.S. 844, 880 (citing R. Cord, Separation of Church and State: Historical Fact and Current Fiction 13 (1988)).
 George Orwell, Animal Farm 108 (1st World Library Literary Society 2004).
 Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 678 (1970).
 FFRF, 705 F. Supp. 2d at 1063.
 Id. at 1050.
 Id. at 1064 (citing Van Orden v. Perry, 545 U.S. 677, 723 (2005)(Stevens, J., dissenting)(emphasis in original).
 Ritter, No. 08CV9799 at 4.
 FFRF, 705 F. Supp. 2d at 1064.
 Plaintiffs’ Brief in Opposition to Defendants’ Motion for Summary Judgment at 10, Ritter, No. 08CV9799 at 4 available at http://www.ffrf.org/uploads/legal/CNDPPlaintiffsBriefOpposition.pdf.