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Atheists Lack Standing to Challenge Colo. Day of Prayer

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By Mark Wilson, Esq. on November 25, 2014 2:45 PM

Every year since 2004, Colorado's governor has recognized a "Colorado Day of Prayer." This isn't terribly unusual in itself; since 1952, Congress has established a "national day of prayer" and most other states do the same thing.

But the Freedom from Religion Foundation doesn't like it. They object to the explicit biblical references in the proclamations, claiming a violation of the Preference Clause of the state constitution (its own version of the Establishment Clause).

Taxpayer and Individual Standing

As so many cases do, however, this case lives or dies based on standing -- but state law standing, not Article III standing. The trial court didn't think it was enough that the plaintiffs had standing because they "were offended by the honorary proclamations" and exposed to media coverage of the events. OK, said the plaintiffs, how about this: They claim the state spends public funds promoting this day of prayer. Eh? Eh?

Though the trial court and appellate courts said yes to standing, the Colorado Supreme Court gave an emphatic "no" and consequently declined to reach the merits of their First Amendment claims.

Taxpayers don't have standing to sue just because they don't like the way public money is spent; they have to claim that the spending is either unlawful or unconstitutional. The trial court, unfortunately, found that no public funds were spent promoting the day of prayer.

And even if there were, the taxpayer has to show some nexus between the spending and the activity. In this case, public expenditures on "the paper, hard-drive space, postage, and personnel necessary to issue one Colorado Day of Prayer proclamation each year" (the only expenditures the plaintiffs could come up with) weren't enough. The court explained, "If such costs were sufficient to confer taxpayer standing, any and all members of the public would have standing to challenge literally any government action that required the use of a computer, basic office supplies, or state employee time."

Nor were plaintiffs harmed because "they were exposed to unavoidable and extensive media coverage revealing the existence of the honorary proclamations." As you might expect, the court didn't think too much of this argument, either, calling it "simply too indirect and incidental an injury" to establish standing.

Dissent: Standing, but Still No Violation

So how could the plaintiffs ever claim there was a constitutional violation? To what level would the state have to go? Two justices dissented, arguing that the court dismissed the very same incidental expenditures that established standing in a nativity scene case in 1982: "the relatively modest taxpayer funds spent to maintain and store the creche."

The dissenters also said that the majority too quickly dismissed the "psychic harms" caused by a government endorsement of religion, as these were the very injuries the Supreme Court said formed the basis of an Establishment Clause violation in its own nativity scene case.

Nevertheless, analyzing the merits, the dissent would find no Preference Clause violation because the proclamations aren't coercive to the degree required.

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