Editor’s note: This story has been corrected to note that Assembly member Willy Dunne will make the invocation at the Dec. 4 meeting.
Last Tuesday’s Kenai Peninsula Borough Assembly meeting on Oct. 23 was just like any other, starting with the pledge of allegiance and an invocation.
Earlier this month, however, the borough lost a lawsuit against plaintiffs represented by the American Civil Liberties Union of Alaska in a fight over its invocation policy, which allows certain groups and individuals to offer an invocation at the beginning of each meeting.
With its invocation policy off the books, Assembly President Wayne Ogle said the assembly at its Nov. 20 meeting will consider several options: appealing the decision, revising its policy or doing away with an invocation entirely.
Anchorage Superior Court Judge Andrew Peterson ruled the invocation policy, passed in 2016, violates the Alaska Constitution’s establishment clause, which is a mandate banning government from establishing an official religion or the favoring of one belief over another. He granted a motion for summary judgment by the plaintiffs in Lance Hunt et al. v. Kenai Peninsula Borough and struck down section IX(D)(4) of Resolution 2016-056.
“They can’t do a half-way hybrid where some members can deliver an invocation based on their affiliation,” said ACLU Alaska Director Joshua Decker. “…The borough’s deciding to allow some and not all — that violates the separation of church and state.”
The resolution setting up the invocation policy allowed a chaplain serving the military, law enforcement agencies, fire departments, hospitals or other similar organizations to give invocations before Kenai Peninsula Borough Assembly meetings, as well as people who are members of a religious organization with an “established presence” in the borough that meets regularly to give the invocation.
Lance Hunt, an atheist, Iris Fontana, a member of The Satanic Temple, and Elise Boyer, a member of the small Jewish community in Homer, all applied to give invocations after the policy was established in 2016. All three were denied because they did not belong to official organizations with an established presence on the peninsula. They sued and the ACLU Alaska agreed to represent them.
Citing client privilege, Decker decline to say if any of the three planned to apply to give an invocation.
Borough Clerk Johni Blankenship said the borough deleted a form to sign up for an invocation from its website after Peterson’s ruling came out. That leaves the borough with no guidelines as to how a member of the public can apply to deliver an invocation. Two people who applied to deliver an invocation before the policy was ruled unconstitutional are still set to give them at upcoming meetings. Blankenship said that if anyone asks to do an invocation, they should send her an email that she would forward to Ogle. No one has done so, she said.
Since then, two subsequent assembly meetings have begun with an invocation or an appeal to a higher authority for the benefit of the assembly, but those have been done by an assembly member.
The borough, represented by Anchorage-based attorney Kevin Clarkson, had defended its policy in the lawsuit. Clarkson works with the Alliance Defending Freedom, a Scottsdale, Arizona-based nonprofit that regularly litigates cases around the U.S. related to religious freedom, abortion and marriage rights. Through Clarkson, the Alliance Defending Freedom offered legal counsel to the borough and paid for part of the cost of its legal defense.
As of Oct. 30, a public records request by the Homer News and the Peninsula Clarion requesting exact figures for the expense of defending the lawsuit had not been granted.
According to invoices of legal bills, which were given to the Homer News by assembly member Willy Dunne, in addition to the legal expenses paid for by the Alliance Defending Freedom, from January 2017 to May 2018, the borough also has paid out about $87,000 in either in-house or billed legal expenses. In an email, Dunne said he was told that borough staff time on the Hunt lawsuit was not tracked after February 2017.
Adding to the borough’s bill could be the legal expenses of the ACLU Alaska in its successful challenge of the invocation policy. Decker said he could not provide an amount yet on what that will be, but will be filing a court request for that soon. Decker said he had advised the assembly on three separate occasions not to continue with its invocation policy.
“That’s one of the arguments we made: Is this the best way to spend taxpayer dollars?” Decker said.
Last Tuesday’s invocation was given by Ogle, who gave thanks to “Father God” and offered a number of prayers.
Several members of the community came to the Oct. 23 meeting to testify on the issue. Keith Hamilton, who lives in the Kalifornsky Beach area, encouraged the assembly to appeal the court’s decision.
“Recently a judge has struck down our policy as it is in its current status,” Hamilton said. “Doing what we believe is considered right and appropriate by the far majority of our residents, assembly leaders should not let others divert you for what is best for the borough in keeping these policies as is. Please don’t back down. Please stand firm and know that we are with you. I encourage you to appeal this court decision and take it to the next court. The first amendment protects us from these threats, for which I’m grateful as both an American and an Alaskan.”
Leslie Rohr is the executive director of Love INC, a community program that represents a network of more than 40 area churches of different denominations. She spoke to the assembly on behalf of herself and Love INC.
“My prayer this evening is that the voice of the majority will not be drowned out by the minority,” Rohr said. “There are so many real issues in our community that we could be spending this time addressing. It makes me sad to think that we have people who are in crisis in our community and we are arguing whether or not there should be an invocation when what we need is to restore the moral culture in our community. How better to do that than to have an invocation to call upon our higher power to bless and guide our elected officials as they make decisions that affect each and every one of us.”
Not everyone who spoke felt the borough should appeal the court’s decision. Ed Martin Jr. from Cooper Landing said he personally believed in prayer, but felt the assembly should not seek an appeal.
“I believe this assembly and many of us in this room need prayer,” Martin said. “Now, there are some in this room who may not welcome it. We as prayer givers should accept the fact that we should have some tolerance. So, in my opinion, I don’t believe the assembly should appeal this case. It’s been clear that you’ve been tested by a Superior Court.”
Greg Andersen of Kenai said he’s concerned the legal fight is a poor use of tax dollars.
“It is time to stop spending taxpayer dollars trying to pursue keeping the present policy in place,” Andersen said. “Tens of thousands have been spent so far and I have a feeling since the borough lost they will be on the hook for the ACLU’s legal fees as well. How many tens of thousands will it add up to? A hundred thousand more? Two hundred thousand more when you add what the borough has spent so far? I would love to see the invocation policy eliminated completely, but I have a feeling that it will be fought tooth and nail by some members of the assembly.”
Andersen suggested the assembly have a moment of silence for people to use as they please.
“Last year, there was a suggestion to have a moment of silence to use as you see fit, which would have ended the lawsuit, but was ignored by most members of the assembly,” Andersen said. “My question is: why not use that now? It is simple and everyone qualifies. No lawsuits. I find it reprehensible that my tax dollars have been spent on this. It has to stop. Appealing the court’s decision would be criminal in my opinion.”
Ogle said the assembly will discuss its next options at the Nov. 20 meeting. Legal staff will brief the assembly on the Hunt case and its implications.
“We intend to have the assembly make a decision at the next meeting and see where we go from there,” Ogle said.
Dunne will make the invocation at the Dec. 4 meeting.
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