Lemon test in Colorado

2012Health & Env't, 220 P.3d 544 , 551 (Colo.2009) (Colorado Supreme Court is the "final arbiter of the meaning of the Colorado Constitution"); and (3) our supreme court has employed the Lemon test at least three times when analyzing issues arising under the Preference Clause, see Freedom from Religion Found., Inc., 898 P.2d at 1021 ; Conrad II, 724 P.2d at 1313 ; Conrad I, 656 P.2d at 672 . ¶ 83 Nonetheless, the Governor's position suggests that, if we were to apply Marsh , the outcome could be different.

2012Health & Env't, 220 P.3d 544 , 551 (Colo.2009) (Colorado Supreme Court is the "final arbiter of the meaning of the Colorado Constitution"); and (3) our supreme court has employed the Lemon test at least three times when analyzing issues arising under the Preference Clause, see Freedom from Religion Found., Inc., 898 P.2d at 1021 ; Conrad II, 724 P.2d at 1313 ; Conrad I, 656 P.2d at 672 . ¶ 83 Nonetheless, the Governor's position suggests that, if we were to apply Marsh , the outcome could be different.

2012County of Allegheny, 492 U.S. at 595 , 109 S.Ct. 3086 (quoting Lynch, 465 U.S. at 694 , 104 S.Ct. 1355 (O'Connor, J., concurring)). ¶ 79 The Governor contends that we should not apply the Lemon test here.

2012County of Allegheny, 492 U.S. at 595 , 109 S.Ct. 3086 (quoting Lynch, 465 U.S. at 694 , 104 S.Ct. 1355 (O'Connor, J., concurring)). ¶ 79 The Governor contends that we should not apply the Lemon test here.

2012Because of that concern, we will, after we apply the Lemon test, consider whether Marsh should be applied to this case. ¶ 84 We are cognizant that the question we resolve involves a sensitive balance, and that "the line of separation [of church and state], far from being a 'wall,' is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." Lemon, 403 U.S. at 614 , 91 S.Ct. 2105 .

2012Because of that concern, we will, after we apply the Lemon test, consider whether Marsh should be applied to this case. ¶ 84 We are cognizant that the question we resolve involves a sensitive balance, and that "the line of separation [of church and state], far from being a 'wall,' is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." Lemon, 403 U.S. at 614 , 91 S.Ct. 2105 .

1995In Marsh v. Chambers, 463 U.S. 783 , 103 S.Ct. 3330 , 77 L.Ed.2d 1019 (1983), the Court did not employ the Lemon test in determining that government conduct in conducting a prayer at the outset of each day of a legislative session did not violate Establishment Clause principles.

1995In Marsh v. Chambers, 463 U.S. 783 , 103 S.Ct. 3330 , 77 L.Ed.2d 1019 (1983), the Court did not employ the Lemon test in determining that government conduct in conducting a prayer at the outset of each day of a legislative session did not violate Establishment Clause principles.

1996However, the Weisman opinion explicitly refused to reconsider the Lemon test and instead confined its holding to cases in which government creation of a state-sponsored and state-directed religious exercise in a public setting was seen as "an attempt to employ the machinery of the state to enforce a religious orthodoxy.” Weisman, 505 U.S. at 592 , 112 S.Ct. at 2658 .

1996However, the Weisman opinion explicitly refused to reconsider the Lemon test and instead confined its holding to cases in which government creation of a state-sponsored and state-directed religious exercise in a public setting was seen as "an attempt to employ the machinery of the state to enforce a religious orthodoxy.” Weisman, 505 U.S. at 592 , 112 S.Ct. at 2658 .

1995In Larson , the Court emphasized that the Lemon criteria “are intended to apply to laws affording a uniform benefit to all religions, and not to provisions ... that discriminate among religions.” Larson, 456 U.S. at 252 , 102 S.Ct. at 1687 (emphasis in original) (footnote omitted). 19 In Lynch , Justice O’Connor made the following statements concerning her view that the purpose and effect prongs of the Lemon test should be revised to more faithfully reflect Establishment Clause principles: The Establishment Clause prohibits government from making adherence to a religion relevant in any way to

1995In Larson , the Court emphasized that the Lemon criteria “are intended to apply to laws affording a uniform benefit to all religions, and not to provisions ... that discriminate among religions.” Larson, 456 U.S. at 252 , 102 S.Ct. at 1687 (emphasis in original) (footnote omitted). 19 In Lynch , Justice O’Connor made the following statements concerning her view that the purpose and effect prongs of the Lemon test should be revised to more faithfully reflect Establishment Clause principles: The Establishment Clause prohibits government from making adherence to a religion relevant in any way to

2012Freedom from Religion Found., Inc., 898 P.2d at 1021 ; see also Edwards v. Aguillard, 482 U.S. 578 , 583, 107 S.Ct. 2573 , 96 L.Ed.2d 510 (1987). ¶ 72 We look to federal case law interpreting the Lemon test when applying it to issues arising under the Preference Clause.

2012Freedom from Religion Found., Inc., 898 P.2d at 1021 ; see also Edwards v. Aguillard, 482 U.S. 578 , 583, 107 S.Ct. 2573 , 96 L.Ed.2d 510 (1987). ¶ 72 We look to federal case law interpreting the Lemon test when applying it to issues arising under the Preference Clause.

2012McCreary County, 545 U.S. at 865 n. 11, 125 S.Ct. 2722 . *406 ¶ 74 Second, when making the inquiry whether the governmental action has a principal or primary effect of advancing religion, we look to the content of the action and its context to determine whether it "has the effect of endorsing religious beliefs." County of Allegheny, 492 U.S. at 597 , 109 S.Ct. 3086 ; Freedom from Religion Found., Inc., 898 P.2d at 1021 .

2012McCreary County, 545 U.S. at 865 n. 11, 125 S.Ct. 2722 . *406 ¶ 74 Second, when making the inquiry whether the governmental action has a principal or primary effect of advancing religion, we look to the content of the action and its context to determine whether it "has the effect of endorsing religious beliefs." County of Allegheny, 492 U.S. at 597 , 109 S.Ct. 3086 ; Freedom from Religion Found., Inc., 898 P.2d at 1021 .

2012Freedom from Religion Found., Inc., 898 P.2d at 1021 ; see also Edwards v. Aguillard, 482 U.S. 578 , 583, 107 S.Ct. 2573 , 96 L.Ed.2d 510 (1987). ¶ 72 We look to federal case law interpreting the Lemon test when applying it to issues arising under the Preference Clause.

2012Freedom from Religion Found., Inc., 898 P.2d at 1021 ; see also Edwards v. Aguillard, 482 U.S. 578 , 583, 107 S.Ct. 2573 , 96 L.Ed.2d 510 (1987). ¶ 72 We look to federal case law interpreting the Lemon test when applying it to issues arising under the Preference Clause.

1996Thus, since our analysis concerns government restriction on actions of UCRS, and not some form of improper subsidization or support of UCRS, the Lemon test continues to apply. [16] Compare to Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378 , 110 S.Ct. 688 , 107 L.Ed.2d 796 (1990), in which a religious corporation brought suit alleging that application of sales and use tax to its sale of religious materials created excessive government entanglement in violation of the Establishment Clause.

1996Thus, since our analysis concerns government restriction on actions of UCRS, and not some form of improper subsidization or support of UCRS, the Lemon test continues to apply. [16] Compare to Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378 , 110 S.Ct. 688 , 107 L.Ed.2d 796 (1990), in which a religious corporation brought suit alleging that application of sales and use tax to its sale of religious materials created excessive government entanglement in violation of the Establishment Clause.

1996Scharon, 929 F.2d at 361 ; Rayburn, 772 F.2d at 1169.

1996Scharon, 929 F.2d at 361 ; Rayburn, 772 F.2d at 1169.

1995Recognizing that both constitutional provisions “ ‘embody the same values of free exercise and governmental non-involvement,’ ” we stated that we would look to the body of First Amendment law that has been developed in the federal courts “for useful guidance.” Conrad I, 656 P.2d at 670 -71 (quoting Americans United for Separation of Church and State Fund, Inc. v. State, 648 P.2d 1072, 1081-82 (Colo.1982)).

1995Recognizing that both constitutional provisions “ ‘embody the same values of free exercise and governmental non-involvement,’ ” we stated that we would look to the body of First Amendment law that has been developed in the federal courts “for useful guidance.” Conrad I, 656 P.2d at 670 -71 (quoting Americans United for Separation of Church and State Fund, Inc. v. State, 648 P.2d 1072, 1081-82 (Colo.1982)).

1995Freedom From Religion Found., Inc. v. State, 872 P.2d 1256, 1262-63 (Colo.App.1993).

1995Freedom From Religion Found., Inc. v. State, 872 P.2d 1256, 1262-63 (Colo.App.1993).

1995See also Wallace v. Jaffree, 472 U.S. 38 , 105 S.Ct. 2479 , 86 L.Ed.2d 29 (1984); Lee v. Weisman, 505 U.S. 577 , 112 S.Ct. 2649 , 120 L.Ed.2d 467 (1992). .

1995See also Wallace v. Jaffree, 472 U.S. 38 , 105 S.Ct. 2479 , 86 L.Ed.2d 29 (1984); Lee v. Weisman, 505 U.S. 577 , 112 S.Ct. 2649 , 120 L.Ed.2d 467 (1992). .

1994See, Lamb’s Chapel v. Center Moriches Union Free School District, — U.S. —, 113 S.Ct. 2141 , 124 L.Ed.2d 352 (1993) (Justice Scalia, concurring); Lee v. Weisman, supra. However, counsel for the State has conceded, and we agree, that, at least until there is a more definitive test expressly adopted by a majority of the Supreme Court, it is the Lemon test, as clarified by Justice O’Connor’s opinion in Lynch , which contains the governing criteria for resolution under the First Amendment of the issues raised here.

1994See, Lamb’s Chapel v. Center Moriches Union Free School District, — U.S. —, 113 S.Ct. 2141 , 124 L.Ed.2d 352 (1993) (Justice Scalia, concurring); Lee v. Weisman, supra. However, counsel for the State has conceded, and we agree, that, at least until there is a more definitive test expressly adopted by a majority of the Supreme Court, it is the Lemon test, as clarified by Justice O’Connor’s opinion in Lynch , which contains the governing criteria for resolution under the First Amendment of the issues raised here.