The Colorado Court of Appeals issued its opinion in Freedom From Religion Foundation, Inc. v. Hickenlooper on May 10, 2012.
Taxpayers—Religion—Proclamation—Preference Clause of the Colorado Constitution—Standing.
Plaintiffs, Freedom from Religion Foundation, Inc. (FFRF) and four of its members (taxpayers), appealed the trial court’s determination that the Governor’s proclamations did not violate the Preference Clause, which is Colorado’s equivalent of the First Amendment’s Establishment Clause. The Governor cross-appealed the trial court’s conclusion that FFRF and the taxpayers had standing to bring this case. The Court of Appeals reversed the order in part and affirmed it in part, and remanded the case.
The taxpayers are citizens of Colorado who pay Colorado taxes. FFRF is a Wisconsin nonprofit organization that is registered to do business in Colorado. Each year from 2004 to 2009, Colorado’s Governor issued an honorary proclamation for the first Thursday of May to be the “Colorado Day of Prayer.” Plaintiffs’ complaint alleged that the proclamations violated the Preference Clause of the Religious Freedom section in Colorado Constitution, Article II, § 4, and asked the court to issue an injunction enjoining the Governor from issuing such proclamations in the future.
The Governor contended on appeal that FFRF and the taxpayers do not have standing. The claim herein arises out of a legally protected interest under the Constitution. Further, there is a nexus between the taxpayers and the governmental action of issuing the Colorado Day of Prayer proclamations. Specifically, the record shows that, although the exact amount is not clear, state funds were spent each year to issue the proclamation. Such a nexus, though slight, is sufficient for standing in Colorado. Therefore, the taxpayers had standing to bring this claim.
The Court determined that the six Colorado Day of Prayer proclamations at issue here were governmental conduct that violated the Preference Clause. The Court concluded that the proclamations (1) express the Governor’s support for their content, which is predominantly religious; (2) lack a secular context; and (3) constitute a government endorsement of religion over non-religion. Accordingly, the court’s order entering summary judgment in favor of the Governor was reversed.
Summary and full case available here.
Print 
PDF
