4. Religious freedom

• Cite as: Colo. Const. art. II § 4

The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness or justify practices inconsistent with the good order, peace or safety of the state. No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship.

Cite as Colo. Const. art. II § 4

Source:

Entire article added, effective August 1, 1876, see L. 1877, p. 29.

ANNOTATION

Law reviews. For article, "Legality of the Denver Housing Authority", see 12 Rocky Mt. L. Rev. 30 (1939). For article, "Fearing Hell as Essential to Validity of Affidavit", see 18 Dicta 144 (1941). For note, "Impeachment of Non-Religious Witnesses", see 13 Rocky Mt. L. Rev. 336 (1941). For article, "The Right to Practice Law As Dependent on Fear of Hell", see 19 Dicta 206 (1942). For comment, "Mueller v. Allen: Clarifying or Confusing Establishment Clause Analysis of State Aid to Public Schools?", see 61 Den. L.J. 877 (1984). For article, "Constitutional Law", which discusses Tenth Circuit decisions dealing with freedom of religion, see 62 Den. U. L. Rev. 98 (1985). For article, "Constitutional Law", which discusses Tenth Circuit decisions dealing with freedom of religion, see 63 Den. U. L. Rev. 247 (1986). For article, "Pronouncements of the U. S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to the establishment clause and vocational aid, see 15 Colo. Law. 1558 (1986). For article, "Fundamentalist Christians, the Public Schools and the Religion Clauses", see 66 Den. U. L. Rev. 289 (1989). For article "Peace at Work: Balancing Religious Exercise Rights of Employers and Employees", see 44 Colo. Law. 51 (June 2015).

Purpose of provision. One of the main evils that the federal and state constitutional religion clauses seek to prevent is the oppression that a sectarian majority may visit upon citizens with unpopular beliefs. Conrad v. City & County of Denver, 656 P.2d 662 (Colo. 1982).

Construction in light of conditions prevailing when section framed. The language in this section must be construed in light of conditions prevailing at the time it was framed and in the practice, usage and understanding of that time. People ex rel. Vollmar v. Stanley, 81 Colo. 276, 255 P. 610 (1927); Americans United for Separation of Church & State Fund, Inc. v. State, 648 P.2d 1072 (Colo. 1982).

With each clause construed separately. Each clause of this section and §§ 7 and 8 of art. IX, Colo. Const. must be construed separately. People ex rel. Vollmar v. Stanley, 81 Colo. 276, 255 P. 610 (1927).

The free exercise clause of the Colorado constitution does not require cases be reviewed under heightened strict scrutiny. The Colorado supreme court has recognized that this section embodies the same values of free exercise and governmental non-involvement secured by the religious clauses of the first amendment and has never indicated that an alternative analysis should apply. Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, 370 P.3d 272, rev'd on other grounds sub nom. Masterpiece Cakeshop Ltd. v. Colo. Civil Rights Comm'n, __ U.S. __, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018).

Restriction under this section should not be greater than under federal constitution. Since it is the duty of the state courts to uphold and support the constitution of the United States, as construed by the highest judicial tribunal of the country, the state supreme court should not construe the state constitutional guarantee of religious freedom as permitting a restriction on the free exercise of religion that would be contrary to the federal constitution as so interpreted, unless required by the plain language thereof so to do. Zavilla v. Masse, 112 Colo. 183, 147 P.2d 823 (1944).

Similarity to federal constitution. Although the provisions of this section are considerably more specific than the establishment clause of the first amendment, they embody the same values of free exercise and governmental noninvolvement secured by the religious clauses of the first amendment. Americans United for Separation of Church & State Fund, Inc. v. State, 648 P.2d 1072 (Colo. 1982); Conrad v. City & County of Denver, 656 P.2d 662 (Colo. 1982).

However, determination of the first amendment challenge will not necessarily be dispositive of the state constitutional question. Conrad v. City & County of Denver, 656 P.2d 662 (Colo. 1982).

State must justify infringements on free exercise. When regulating religious conduct the state may be challenged to justify its infringement of the totally free exercise of religion. Pillar of Fire v. Denver Urban Renewal Auth., 181 Colo. 411, 509 P.2d 1250 (1973).

State burden on free exercise of religion. Should the state burden the free exercise of religion, it must do so in the least restrictive available way to achieve a compelling state interest. The tension between economic considerations and the United States Constitution first amendment rights must be resolved in favor of the latter. Engraff v. Indus. Comm'n, 678 P.2d 564 (Colo. App. 1983).