ACLU: Kenai assembly invocation violates religious liberties

KENAI — The American Civil Liberties Union of Alaska has asked the Kenai Peninsula Borough to back down from its newly passed invocation policy.

The organization, which advocates for individual constitutional liberties, frequently through litigation, sent a letter to Kenai Peninsula Borough Assembly President Blaine Gilman claiming the policy violates religious liberty because those seeking to give an invocation must pass a religious test.

“On its face, this test prohibits people who belong to no religious association or whose religious associations fail to pass the Assembly’s test from participating in the Borough’s civic life by giving a legislative invocation,” wrote ACLU Alaska Executive Director Joshua Decker in the letter. “This violates the constitutional guarantees of equal protection and religious freedom.”

After a protracted controversy about who may give the invocation before the assembly’s regularly scheduled meetings over the summer, the assembly debated and passed a formal policy at its Oct. 11 meeting that outlines rules for giving an invocation. Under the policy, the person giving the invocation must be a chaplain serving fire departments, law enforcement agencies, hospitals or other similar organizations or a member of a religious association that meets regularly in the borough, as long as the leader of the association submits a written request to the borough clerk’s office.

Before that, the assembly scheduled invocations on a first-come, first-serve basis from anyone who wanted to give one. Decker said the ACLU of Alaska has been following the issue throughout the summer and thought the assembly made the right call when the members decided in July not to restrict who can give the invocation. However, when the assembly passed the policy last week, the ACLU became concerned because the policy seems discriminatory, he said.

“We’re hoping the assembly is going to do the right thing and go back to the way things were before (Oct. 11),” Decker said.

The policy is shaped after the 2014 U.S. Supreme Court ruling Town of Greece v. Galloway, in which the court ruled that the city council of Greece, New York could have prayers before its meetings as long as the prayers do not show a pattern of “denigrating nonbelievers or religious minorities, threaten damnation, or preach conversion,” according to the borough resolution containing the new policy. The Supreme Court decision also stated that the prayers are permissible because no one is required to participate, and even if some say the prayers offend them, “offense does not equate to coercion.” The resolution also references other court decisions ruling that governmental bodies can have public invocations before their meetings in a variety of states.

Decker referenced the Town of Greece v. Galloway decision in his letter to the borough, saying the court had ruled that once a governmental body invites prayer into the public sphere, it must be open to everyone. He said there are two solutions: either to return to the previous policy, in which anyone could give an invocation, or to do away with invocation entirely.

At the end of the letter, he urged the assembly to make a decision by Nov. 28, 2016. While the letter does not explicitly threaten litigation, the organization wouldn’t rule it out “if that’s what it took to uphold the Constitution,” Decker said.

“We sent this letter today to the borough assembly and hope they’re going to do the right thing,” he said.

Gilman said he had just received the letter Thursday afternoon and couldn’t comment on it because the borough assembly will have to discuss it. Borough attorney Colette Thompson said the borough would not comment on the letter either.

The legal department asked assembly members not to comment on the matter on behalf of the assembly because the group has not had time to discuss it yet. As an individual, assembly member Willy Dunne said he thought the letter made some valid points. Dunne opposed the new policy and said he doesn’t like the concept of the religious test which people would have to pass to qualify to give an invocation.

“I think we will be discussing this more, and I’m looking forward to hearing how the assembly decides on this,” Dunne said.

Brandii Holmdahl, who represents Seward on the assembly, said she could not comment as an assembly member but as an individual said she thinks that the assembly should either not have an invocation or should let it be open to everyone. Holmdahl proposed twice this summer to remove the invocation from the assembly’s agenda, but the proposals both failed to pass introduction.

Assembly member Gary Knopp said he was not surprised that the decision was challenged and that it will have to be dealt with by the borough legal department and the assembly president. When reached, assembly member Kelly Cooper said she had not seen the letter yet. Other assembly members could not be reached for comment as of press time Thursday.

• Elizabeth Earl is a reporter for the Kenai Peninsula Clarion and can be reached at elizabeth.earl@peninsulaclarion.com.

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