A First Amendment saga continued Thursday for the Kenai Peninsula Borough (KPB) Assembly, as the ACLU of Alaska warned members that restrictions on who can give the invocation at Assembly meetings are unconstitutional.
Residents of KPB complained to the Assembly as early as April 5 that the invocation that begins every Assembly meeting was consistently delivered by someone of Judeo-Christian background. Some testified that prayer is not in keeping with the separation of church and state.
In response, the Assembly considered eliminating the invocation. Instead, they opened it up to everyone on a first-come, first served basis.
The issue gained widespread attention when, during the invocation on August 9, Iris Fontana of The Satanic Temple encouraged listeners to “embrace the Luciferian impulse to eat of the tree of knowledge[.]” Fontana concluded with “Hail Satan.”
Fontana sent in her request to give the invocation back in April.
At its October 11 meeting, the KPB Assembly walked back the open-invocation policy by passing Resolution 2016-056. The resolution limits invocation speakers to appointed representatives of “all religious associations with an established presence in the Kenai Peninsula Borough that regularly meet for the primary purpose of sharing a religious perspective, or chaplains who may serve one of [sic] more of the fire departments, law enforcement agencies, hospitals, or other similar organizations in the borough[.]”
Those wishing to provide the invocation must fill out a request. It remains first-come, first served.
However, atheists, agnostics, and those from religions that don’t meet regularly in KPB are excluded.
On Thursday, ACLU of Alaska sent a letter to KPB Assembly President Blaine Gilman (Kenai), advising the resolution establishes a five-part religion test that violates equal protection and religious freedom.
“While invocations are optional, once the Assembly chooses to have them, it may not use such a test to decide who may give them,” wrote ACLU of Alaska Executive Director Joshua Decker.
The ACLU believes the only two options available to the Assembly are eliminating invocations or returning to the pre-resolution open-invocation policy.
KBBI, which has been covering the controversy, reported that KPB was one of a minority of Alaska borough assemblies that includes an invocation at its meetings.
KPB Assembly Quickly Confronted With Other Belief Systems
The Assembly anticipated that there would be applicants outside the Judeo-Christian tradition when it changed to an open policy.
“It’s going to be an interesting, eclectic group who are going to be coming forward and expressing their goodwill toward the Assembly. I think that’s what we have to do,” Gilman said at the body’s July 26 meeting. “What religious liberty means is that it’s pretty much open for everybody.”
Gilman told those present that standing for or participating in the invocation were optional. At previous meetings, Gilman had advised people to remain standing for the invocation following the Pledge of Allegiance.
Self-described atheist Lance Hunt opened that July meeting, telling Assembly members, “I understand that it is not always easy to entertain different beliefs when we perceive them as a threat to the very core of our belief.”
“I focus on the positive attributes of humankind, like love, compassion, and empathy. I draw inspiration from the creations and advancements of our species,” Hunt continued. “It is my hope that you will cast aside preconceived bias upon entering these chambers so that you can hear the will of your constituents without the external stresses and pressures of the immenseness of life. Only when we calm our minds and let our dogmas dissolve in the face of evidence can we know true wisdom. I plead that you carefully consider all motivations behind restricting liberties. If we are to be the Land of the Free, surely liberty is our greatest tool…”
The following meeting, Fontana gave her invocation:
Let us stand now, unbowed and unfettered by arcane doctrines born of fearful minds in darkened times. Let us embrace the Luciferian impulse to eat of the tree of knowledge and dissipate our blissful and comforting delusions of old. Let us demand that individuals be judged for their concrete actions, not their fealty to arbitrary social norms and illusory categorizations. Let us reason our solutions with agnosticism in all things, holding fast only to that which is demonstratably [sic] true. Let us stand firm against any and all arbitrary authority that threatens the personal sovereignty of all or one. That which will not bend must break, and that which can be destroyed by truth should never be spared its demise. It is done. Hail Satan. Thank you.
“I appreciate what the Assembly president’s doing with the prayer issue and trying to be fair, I guess, but I find it a little ironic that the — I hate to call it a prayer — invocation from the atheist [Hunt] wasn’t really about doing good and making good decisions; it was a political statement. And he was here tonight filming the lady that gave the invocation [Fontana], and obviously she was doing it for a political statement,” Assemblyman Dale Bagley (Soldotna) said later during a comment period.
“I think that if a pastor had been here doing the same type of political statements on something, we wouldn’t have been letting them back here,” Bagley added.
Gilman agreed that the invocations in question were political statements, rather than prayers.
However, Gilman said,
Sometimes as a political body… we have to listen to religious views which we don’t agree with or even atheistic views which we don’t agree with. I hope that as this progresses that people more address their comments to the Assembly about making prudent decisions, wise decisions, and not use this so much to make a political statement. But, you know, the pastors were pretty clear here that they didn’t want the alternative, which was to ban the invocations. This is what living in a democracy is. It’s important for the right of freedom of religion. It’s important for freedom of speech… It’s important that we protect our liberties, protect our Constitution…
Assembly Members Look for Satisfactory Alternative to Open Invocation
Gilman said he expected things would calm down, but the Assembly itself may have prevented that from happening.
Two weeks after Fontana’s invocation, at a meeting begun with a prayer from Soldotna Church of God Pastor Alan Humphries, Assembly Vice President Brent Johnson introduced an ordinance that would have replaced the invocation with a moment of silence.
During public testimony, Carrie Henson of the Last Frontier Freethinkers said that after Fontana’s invocation, some Kenai residents had turned nasty, even labeling Henson a “baby killer,” in part due to her belief system and despite her charitable work on the Baby Box Campaign that combats Sudden Infant Death Syndrome (SIDS) by providing low-income mothers a place for their babies to sleep safely.
Henson questioned whether, when they see her, Assembly members of faith see only the “scarlet letter” of atheism.
Hunt, the atheist who gave the first invocation under the open policy, testified that he was neutral on the ordinance. If there was to be an invocation, he said, it should remain open to all, but Hunt found a moment of silence to be a good compromise.
But most who testified specifically to Ordinance 2016-32 were opposed, including Humphries and Sen. Peter Micciche (R-Soldotna), who told Assembly members that starting each meeting with an invocation is about “freedom of religion, not freedom from religion.”
“I don’t think people are here because of the last invocation,” Micciche said, referring to Fontana’s prayer. “I think people are here with a fear of us not having recognition of the values of different belief systems and removing a focus on a higher Being from this room.”
Micciche encouraged Assembly members to vote against the moment of silence and craft a different policy with “appropriate sidebars” limiting who could participate.
O2016-32 failed by a vote of 4-4. Assembly members Kelly Cooper (Homer), Willy Dunne (Homer), Brandii Holmdahl (Seward), and Johnson voted in favor. Gilman and Bagley joined Assembly members Gary Knopp (Soldotna) and Wayne Ogle (Kenai) in opposition.
Assemblyman Stan Welles (Sterling) was absent for health reasons.
A separate ordinance sponsored by Holmdahl that would have eliminated the invocation from the standard order of business failed to be formally introduced by the same vote.
ACLU and Assembly Disagree Over Resolution’s Constitutionality
Gilman and Bagley pushed back against efforts to do away with the invocation, introducing the resolution on October 11 that would limit the invocation to religious organizations established in KPB.
“Why are Assembly members ignoring the wishes of the majority of the people you supposedly represent who, regardless of their religions, beseech you for the separation of church and state, which is promised in our U.S. Constitution?” Fontana asked during public testimony on R2016-056.
Gilman passed the gavel during debate to say that the resolution was tailored with the U.S. Supreme Court’s decision in Town of Greece v Galloway in mind.
In that case, Greece, New York, selected clergy from a list of local congregations, which were almost exclusively Christian, to give the opening invocation. In a 5-4 decision, the Court upheld the practice.
“Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith,” Justice Anthony Kennedy wrote for the majority.
That nearly all of the congregations in [Greece] turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. The quest to promote “a ‘diversity’ of religious views” would require the town “to make wholly inappropriate judgments about the number of religions [it] should sponsor and the relative frequency with which it should sponsor each,” a form of government entanglement with religion that is far more troublesome than the current approach.
Before voting in favor of the resolution, Gilman noted that no one is compelled to participate in the invocation. He added that public figures with religious conviction shouldn’t have to feel marginalized.
But Henson, who opened the October 11 meeting with the invocation, testified that Assembly members were overlooking that Greece never denied anyone, including atheists, the opportunity to give the invocation. As written, R2016-056 would do so.
“It is clear that some of you, unfortunately, have read into the Greece decision only that majority rules when it comes to religion and consider the decision an excuse to continue scheduling only Christian clergy or, at most, token non-Christian clergy,” said Henson.
In its letter to the Assembly, the ACLU supported Henson’s position.
Though the Court was addressing a claim that public prayer must refrain from religion-specific references, like the name of Jesus, Decker quoted Kennedy in Town of Greece: “The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.”
Nevertheless, the resolution passed 6-3. In his last meeting before terming out, Johnson joined Gilman, Bagley, Knopp, Ogle, and Welles in favor. Cooper, Dunne, and Holmdahl voted “no.”
Paul Fischer (Soldotna) replaced Johnson in the October 4 election. Both Ogle and Bagley ran unopposed to retain their seats.
The ACLU has not filed suit against the Assembly, but wrote that it hopes the Assembly will either eliminate the opening invocation or return to the open-invocation policy by its November 28 meeting.
The KPB Assembly meets on the first and third Tuesday of every month.
The agenda for its next meeting, October 25, includes a post-election restructuring of the Assembly when new leadership can be chosen.
It also includes language from R2016-056 that the invocation “shall be a voluntary offering of a private person, to and for the benefit of the assembly. No member of the community is required to attend or participate in the invocation.”