ACLU sues borough over invocation policy

The American Civil Liberties Union of Alaska is suing the Kenai Peninsula Borough over the borough assembly’s invocation policy, which it claims is discriminatory.

The lawsuit, filed Wednesday, comes on the heels of the assembly recently reviving its controversial invocation guideline policy, initially passed in October, that outlines who can offer the invocation before the assembly’s regular meetings.

The ACLU asserts that the policy discriminates against individuals because it requires people to be part of groups with an established presence on the Kenai Peninsula that meet regularly for the primary purpose of sharing a religious perspective or that they are chaplains that serve hospitals, fire departments, law enforcement or other similar organizations.

The organization held a press conference Wednesday morning in Anchorage after it filed the lawsuit in Alaska Superior Court.

“The separation of church and state is a core principle of Alaskan and American democracy, as are free speech and equal protection under the law,” the complaint states. “These principles are plainly and broadly expressed in both the Alaska Constitution and the United States Constitution. They are among the cornerstones of our form of self-government.”

The controversy over the invocation began after Iris Fontana, a Kasilof resident and a member of the Satanic Temple, offered the invocation at the Aug. 9 meeting. In reaction, assembly members tried to eliminate the invocation and transition it to a moment of silence, but both efforts failed. The assembly passed the current invocation policy in the form of a resolution, which does not require the introduction and public hearing process of an ordinance, at its Oct. 11 meeting.

A little over a week later, on Oct. 20, the ACLU sent a letter to the borough assembly, asking its members to drop the invocation policy under threat of litigation. Subsequently, Borough Mayor Mike Navarre vetoed the policy, but the assembly voted to overturn his veto at the Oct. 25 meeting. During the discussion of the veto, several assembly members said they would support an amendment to the policy.

At the Nov. 22 meeting, the assembly narrowly passed an amendment that deleted the entire policy, taking it back to the informal first-come, first-serve policy the assembly had used for its invocations before the Oct. 11 meeting. However, during a reconsideration at the Dec. 6 meeting of the amendment that assembly member Blaine Gilman requested, the assembly narrowly voted to fail the amendment, restoring the controversial Oct. 11 policy that the ACLU had written the letter about.

Throughout the process, the assembly has been sharply divided. Few members have switched sides or their votes throughout the debate; assembly members Kelly Cooper, Willy Dunne and Brandii Holmdahl have voted against the policy every time. Assembly members Stan Welles, Gilman, Wayne Ogle and Dale Bagley have voted for it every time. Assembly member Gary Knopp switched sides, having initially voted for the policy on Oct. 11, and then proposing the Nov. 22 amendment to delete the policy in its entirety and voting against reinstating the policy on Dec. 6. Member Paul Fischer, who joined the assembly after the Oct. 4 election, voted for the policy Oct. 11 and to overturn Navarre’s veto, then twice voted in favor of the amendment that would have deleted the policy.

Fontana is one of the plaintiffs in the case. The second plaintiff, Lance Hunt, has been involved in the debate over the prayer before the assembly since before the initial controversy. An atheist and member of the local nonreligious group the Last Frontier Freethinkers, Hunt delivered an atheist invocation to the assembly at the meeting before Fontana delivered hers.

However, after the policy passed, Hunt no longer qualified to give an invocation before the assembly because he is not part of a religious group with an established presence in the borough. Fontana had the same problem because although she is a member of the national Satanic Temple, there is no established chapter yet on the Kenai Peninsula.

“I’m involved in my community and I try to make the Kenai a better place for my neighbors,” Hunt said in a press release from the ACLU. “My July invocation called on the members of the Borough Assembly to be good to everyone, to recognize our common humanity, and to have empathy for our neighbors. Just because I don’t belong to a religious association, I don’t understand why the Assembly felt the need to prevent me from offering a similar invocation in the future.”

The complaint is asking for the court to declare the invocation policy unconstitutional both by the Alaska Constitution and the U.S. Constitution, award attorneys fees, damages and “all other just and equitable relief.”

The borough has received a copy of the complaint but has not been served, said Borough Attorney Colette Thompson. She said she couldn’t comment on the complaint.

Navarre said at the last assembly meeting that he plans to bring forward an appropriation ordinance to the assembly to provide additional funds for legal defense related to the invocation policy. He brought one such ordinance to the assembly at the Nov. 22 meeting, but because the amendment to delete the policy passed, he withdrew it.

At the last assembly meeting, more than a dozen members of the public testified about the invocation policy issue. Many said they did not want the borough to spend taxpayers’ money on a lawsuit and wanted the invocation policy to stay gone.

Reach Elizabeth Earl at