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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Sunday, May 13, 2012

Colorado's prayer proclamations ruled unconstitutional

The Colorado Court of Appeals has unanimously held a series of day-of-prayer proclamations, issued by the governor of the state in recent years, to be unconstitutional. The case was decided under the state constitution, rather than the Establishment Clause of America's federal constitution, though the test used was one that is familar from federal litigation in the US, i.e. the Lemon test:

1. The governmental action must have a secular purpose.
2. The principal or primary effect must be one that neither advances nor inhibits religion. AND
3. It must not foster an excessive government entanglement with religion.

You'd think cases like this would be straightforward - what on earth is a government in a secular, pluralist society doing enjoining its citizens to engage in a religious activity such as prayer, and how can this not violate any constitutional provisions that separate government from religion? - but it proves difficult in practice.

This is an important victory for the Freedom from Religion Foundation, and hopefully it will stick. I'm not sure whether any further appeal is possible - since the matter involves the interpretation of a state constitution, I don't see how the US Supreme Court would or could deal with it (in the US, state supreme courts are the highest interpreters of state constitutions). However, I'm not au fait with the judicial structure in Colorado. Is there any way to get a Court of Appeals judgment reviewed or overturned within the state system there, does anyone know?


Anonymous said...

I'm sure the proponents will start championing a change in the state constitution to allow this. At that point, it will take SCotUS to weigh in.

Tom Winger said...

Disclaimer: I am not a lawyer. I'm currently working on my law degree at the University of Denver in Colorado.

I haven't had a chance to read the full opinion yet, so I can't speak to what test the court applied in this case.

However, the Colorado Court of Appeals is not the final appellate court in the state. That would be the Colorado Supreme Court.

The Colorado Attorney General's office defended this case on behalf of the State/Governor Hickenlooper. The AG's office is currently deciding whether or not to appeal this decision to the Colorado Supreme Court.

Even if the AG decides to appeal, the CO Supreme Court would still have to grant certiori -- that is, accept the appeal, as I don't believe that this sort of appeal is mandatory. (There might be some sort of statutory exception regarding the AG's office, but I'm not aware of one.)

If the AG appeals and the CO Supreme Court grants cert and issues an opinion, the "losing" party would then be able to appeal the CO Supreme Court opinion to the US Supreme Court, also in a discretionary manner.

I believe that if the CO Supreme Court denies cert, the AG may then petition the US Supreme Court for cert, as well.

Anyway, there are other minor technical ways to get this decision reviewed on appeal, but the answer remains: no, the CO Court of Appeals is not the highest court in Colorado.

Russell Blackford said...

Thanks for that information, Tom. Am I correct in assuming that the US Supreme Court would be unlikely to take the case, if it got that far, when it involves the interpretation and application of a state constitution?

The information about the relationship between the Court of Appeals and the Supreme Court in Colorado was exactly what I wanted.

Tom Winger said...

I'm embarrassed. I was in a rush and skipped steps in my analysis on my previous comment and published incomplete -- and thus incorrect -- information!

1 -- the US Supreme Court does not have the final say on what state law says. That's up to the highest court of each state.

2 -- Because of #1, state supreme court decisions on state law cannot be appealed. My apologies, as I hastily wrote that and it's flat-out wrong.

I had read sqlrob's comment (he's exactly right) and conflated the state/federal constitutional issues. If the CO Supreme Court denies cert and/or upholds the CO Court of Appeals ruling, the next logical step would in fact be for the voters of CO to decide whether to amend the Colorado Constitution in order to directly overturn the hypothetical CO Supreme Court decision. This process would be identical to what happened in California with Prop 8.

I should note that the Colorado Constitution is ridiculously easy to amend, so this would turn into a "majority rules" sort of thing -- again, exactly like Prop 8.

Anyway, assuming all of this happened, the FFRF would then have to challenge the CO Day of Prayer as violating the US Constitution. That could be done in either state court or federal district court, but it would be an entirely different case/suit. Again, exactly like the Prop 8 case.

Now I can get around to answering your question. Regardless of whether the second round of litigation took place in state or federal court, because the US Constitution would be in play, eventually the US Supreme Court might have to decide whether to hear the case or not.

More than 99% of certiori petitions submitted to the US Supreme Court are denied, and most of those with little or no comment as to why. However, the current state of federal Establishment Clause / Free Exercise Clause jurisprudence is pretty much in shambles. Justice Thomas remarked on this recently. While I don't think I'd agree with his "refinement" of the law, I do agree with him that the law is less than clear...

Seeing as this case couldn't actually be up for US Supreme Court review for years, it's even harder to predict what the justices would actually do...

My apologies again for the incorrect information I originally posted. I'd blame it on long hours studying, but as I'm studying law books, that wouldn't exactly help my cause...

However, I'm glad I was able to answer your question about the relationship between the CO Court of Appeals and the CO Supreme Court. At least I got that one right!

Irrespective of my hasty (and shoddy) initial analysis, as a non-believer and a Colorado resident, I was both stunned and thrilled when this decision came down. I don't have a ton of confidence that the ruling will eventually be upheld, but I didn't have much confidence that the Court of Appeals would have ruled this way in the first place. It's good to be wrong, sometimes! (Just not in legal analysis.)

Russell Blackford said...

That's all okay - yes, it was my understanding that it's up to the highest state courts in the US to have the final say in interpreting the relevant state constitutions.

I guess the important issue for the moment is whether it will be appealed to the state Supreme Court. The case seems to me to be obviously correctly decided a this point, but you never know what will happen in an appeal.

Tom Winger said...

Correct, an appeal is never a sure thing. I would actually love to know if/why the AG plans to appeal...

Regardless, thanks for posting about the case. I haven't seen much fanfare about it, even here in CO, so it's nice to see it get some attention.

Russell Blackford said...

My pleasure. The appeal court's judgment (I've read it in its entirety) is a beautifully clear analysis. Hopefully it will survive any attacks.