June 18, 2019

Colorado Court of Appeals: “Colorado Day of Prayer” Proclamations Violated Preference Clause of State Constitution

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.

Colorado Court of Appeals: Prohibition on Demonstrating with Gruesome Images on Posters Was Narrowly Tailored and Supported by Compelling Government Interest

The Colorado Court of Appeals issued its opinion in St. John’s Church in the Wilderness v. Scott on April 26, 2012.

First Amendment—Law of the Case Doctrine.

This appeal followed the remand ordered in St. John’s in the Wilderness v. Scott, 194 P.3d 475 (Colo.App. 2008) (St. John’s I).The order was affirmed.

Plaintiffs, St. John’s Church in the Wilderness and two parishioners, Charles I. Thompson and Charles W. Berberich, brought claims for private nuisance and conspiracy to commit private nuisance against defendants Kenneth Tyler Scott and Clifton Powell. Specifically, defendants had demonstrated their opposition to abortion and homosexuality on the public street and sidewalk across the street from the church during an outdoor Palm Sunday service that began on Church property. Defendants shouted and carried signs, some of which included images of aborted fetuses.

On appeal, defendants contended that St. John’s I wrongly abridged their First Amendment rights and, because controlling law had changed since St. John’s I was decided, the Court of Appeals need not follow it as law of the case. St. John’s I expressly addressed the arguments that defendants raised here, and the new cases cited by defendants follow established precedent. Therefore, the Court declined to address those issues decided by St. John’s I.

Defendants also contended that the trial court failed to obey directions imposed in St. John’s I. On remand, the trial court removed “at all times on all days” and added “on days on which they engage in any conduct proscribed by this injunction.” Although the original prohibition was vacated, the court did not abuse its discretion with this new language.

Defendants further contended that prohibiting speech that causes parishioners “to become physically upset” and the prohibition from carrying posters “depicting gruesome images of mutilated fetuses or dead bodies” impermissibly restrict their First Amendment rights. The prohibition related to speech causing members of the congregation “to become physically upset” was vacated. Plaintiffs conceded that prohibiting “shouting or yelling . . . in a manner reasonably calculated to . . . disrupt parishioners’ ability to worship” and the church’s “ability to use its property for worship services” adequately protects their interests. On the other hand, the language prohibiting the gruesome posters was affirmed. The court determined the prohibition was narrowly tailored, and was supported by a compelling governmental interest in protecting children from disturbing images.

Summary and full case available here.

SB 12-093: Requiring Hospitals to Provide Notice When Services Denied Due to Religious Reasons

On January 19, 2012, Sen. Morgan Carroll and Rep. Cristana Duran introduced SB 12-093 – Concerning a Requirement that a Licensed Hospital Provide Notice to Patients of Any Service Not Provided By the Hospital Because of Moral Convictions Based on Religious Beliefs. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires hospitals licensed in Colorado to provide notice in a manner specified by the department of public health and environment of all services that the hospital refuses to provide because of religious beliefs or moral convictions. The bill requires the notice to inform patients of their right to obtain any service not provided by the hospital because of religious beliefs or moral convictions from another hospital that does provide the service. Requires the notice to be made available prior to or at admission of the patient or as soon after admission as practicable. On February 16, the Health and Human Services Committee referred the unamended bill to the full Senate for consideration on 2nd Reading.

Since this summary, the 2nd Reading was laid over daily until February 24.

Summaries of other featured bills can be found here.

Colorado Court of Appeals: Religious Organization’s Function Not Primarily Religious and Therefore Unemployment Compensation Wrongfully Denied

The Colorado Court of Appeals issued its opinion in Harbert v. Industrial Claim Appeals Office on February 2, 2012.

Unemployment Compensation—Exemption Under CRS § 8-70-140(1)(a)

Claimant sought review of a final order of the Industrial Claim Appeals Office (Panel) affirming the hearing officer’s decision that she was not entitled to unemployment compensation benefits because she was not engaged in covered employment when she was terminated. The Panel’s order was set aside and the case was remanded.

From March 2007 until October 2010, claimant worked in a resale store operated by Evergreen Christian Outreach (EChO). According to its mission statement, EChO was founded by a group of churches in Evergreen “to provide assistance to residents of the Evergreen mountain communities who are unemployed, under-employed, dealing with a long-term illness, or experiencing other forms of personal crisis.” The resale store where claimant worked provides a major source of funding for EChO’s outreach programs. EChO’s facilities are located on the grounds of an Episcopal church, but the resale store is located in a private commercial space.

Claimant separated from her employment and applied for unemployment benefits. A deputy denied her claim, concluding that EChO is a religious organization. The hearing officer also denied her claim because her work was performed for an organization operated primarily for religious purposes and is operated, supervised, controlled, or principally supported by an association of churches. The Panel affirmed and claimant appealed.

The Court of Appeals examined the stipulation under CRS § 8-70-140(1)(a) that exempts an organization if it “is operated primarily for religious purposes and . . . is operated, supervised controlled, or principally supported by a church or convention or association of churches.” Claimant argued that EChO is a nonprofit organization whose primary function is to operate a community food bank and provide limited or temporary assistance for those in need in the Evergreen community. She claimed the work was primarily secular in nature and that EChO is not operated primarily for religious purposes.

The Court looked to the test set forth in Samaritan Institute v. Prince Walker, 883 P.2d 3 (Colo. 1994), in which the controlling factor is “the type of activity actually engaged in, rather than the motivation and impetus for the activity.” In reviewing the hearing officer’s analysis, the Court noted that EChO’s activities were not sufficiently evaluated. The officer observed that EChO’s primary function, the provision of services such as food and clothing, is “not religious per se.” In addition, EChO was a separate legal entity from the churches that founded it. The primary purpose and activity carried out by EChO was the provision of assistance services to those in need, regardless of their religious affiliation or beliefs. Although its motivation was religious, it was operated primarily to perform charitable work for disadvantaged individuals in Evergreen. The Court concluded that the Panel misapplied the law and held that EChO was not exempt under the statute.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 2, 2012, can be found here.