The ACLU of Alaska is watching the next moves of the Kenai Peninsula Borough (KPB) Assembly closely after Assembly members voted Tuesday to eliminate a restrictive invocation policy but left the possibility of undoing that action.
When a member of The Satanic Temple provided the opening invocation at an Assembly meeting in August, then-Assembly President Blaine Gilman (Kenai) sponsored Resolution 2016-056, restricting the invocation to members of a religious organization that regularly meets in the KPB.
The ACLU of Alaska warned the Assembly that R2016-056 created an unconstitutional religious test and gave members until November 28 to either return to an open policy or eliminate the invocation from meetings.
Mayor Mike Navarre vetoed the resolution last month, but Assembly members voted 6-3 to override the veto.
Current Assembly President Kelly Cooper (Homer) and Assembly Member Dale Bagley (Soldotna) introduced a new resolution (R2016-072) at Tuesday’s meeting that would have loosened the invocation policy, but still restricted it to members of an “association” that meets regularly, thereby excluding individual atheists and religious practitioners without congregations.
“Although this resolution is more inclusive than the last, it still does not address an individual citizen’s right to solemnize these meetings if they have no affiliation with an association,” Carrie Henson of the Last Frontier Freethinkers told Assembly members during public testimony.
ACLU of Alaska attorney Eric Glatt said that even with the changes in the resolution, the ACLU would still be opposed to the invocation policy.
“We also reiterate our concern over the constitutional infirmities of the current policy, Resolution 2016-056. Tests that control which members of the public may offer invocations before assembly meetings violate core constitutional principles,” said Glatt.
The threat of a lawsuit caused Navarre to sponsor an ordinance allowing for a $75,000 appropriation to defend the borough in court.
“This area of the law is complex and in flux as cases continue to be litigated and decided across the country. Outside counsel will likely be needed for the legal department to properly advise the assembly and will be needed if litigation ensues,” Navarre explained in a memo to the Assembly.
KPB Assembly Votes to Return to Old Policy, But Move Held in Limbo
Navarre’s ordinance seemed obviated when the Assembly, on a vote of 5-4, passed an amendment Tuesday striking the language in R2016-056 and returning the Assembly to its previous informal invocation policy.
Several Assembly members expressed relief that the invocation issue was put to rest. Members even withdrew Navarre’s ordinance for the legal fees.
Yet minutes before the conclusion of the meeting, Gilman, admitting he would become “the most unpopular member of the Assembly,” moved for reconsideration of his “no” vote, putting the amendment in limbo and keeping R2016-056 in place.
The amended R2016-072 may not survive a reconsideration vote.
Assembly Member Gary Knopp, the amendment’s sponsor, was elected earlier this month to the House seat being vacated by Rep. Kurt Olson (R-Soldotna). Knopp is resigning his Assembly seat in December.
There is no guarantee that Knopp’s replacement will support R2016-072 should reconsideration come up after Knopp leaves.
Further, one member expressed regret over his “yes” vote Tuesday.
“I think I voted the wrong way because I believe that after listening to that testimony, I think people have the wrong idea of what an invocation is,” Assembly Member Paul Fischer (Soldotna) said during closing remarks. “The issue is not over yet, I don’t think, for invocations.”
The ACLU of Alaska seemed more hopeful Wednesday, writing on its Facebook page that it is “pleased to hear that the Kenai Peninsula Borough Assembly has amended its invocations policy and will return to allowing all residents to fully participate in local civic life.”
“We trust that, just as before and as the Constitution requires, the Kenai Assembly will once again allow anyone — religious believers, agnostics, and atheists — to solemnize Assembly meetings and fully participate in the public civic life of the Kenai Peninsula Borough,” ACLU of Alaska Executive Director Joshua Decker said in a statement.
When asked whether the ACLU of Alaska would hold the KPB Assembly to its original deadline of November 28, Decker told Alaska Commons, “We’ve clearly articulated the constitutional concerns to the Assembly.”
Decker said that he was “interested to see what happens” at the Assembly’s December 6 meeting with regard to the reconsideration vote and expects members to abide by the Constitution.
“They did the right thing last night. They voted to repeal the unconstitutional policy,” he said.
Henson, who provided the opening invocation Tuesday night, also qualified her praise for Assembly members, saying, “I still do believe that to be most constitutionally sound there should not be an invocation.”
Assembly Member Knopp: “It Really Is Time to Put This to Bed.”
Henson chose to “invoke the power of gratitude” for her invocation, including a not-so-subtle dig at R2016-056:
With an attitude of gratitude, let us give thanks to nature for all it has provided us; for family and friends who walk with us throughout the years. Let us all give thanks for those who have touched our hearts and made us smile. Let us give thanks to those who have alleviated suffering, who have championed a cause; for those who have resisted unjust laws, who have fought against oppression and injustice and fought for the freedoms we enjoy.
Knopp and Assembly Member Stan Welles (Sterling) remained seated during Henson’s invocation.
Henson testified that she did not expect the new resolution to pass Tuesday and wondered why members don’t pray together prior to the start of meetings.
“Perhaps it is because members of this body years ago felt the need to make their personal religious view political,” she opined. “It is not now those of us who are standing up for neutrality in government that have made the invocation political; I charge that it is those who pervasively insist their religious view be front and center in public life are the ones who created the invocation for the political purpose of religious privilege.”
While Knopp acknowledged his preference for Christian invocations, he said, “I’m also not willing to have the potential to discriminate against anybody in the public who wants to give invocations. They should be the same right to give them, whether I like them or not.”
“We adopted a policy in regards to invocation that has some flaws in it, to put it bluntly, and so this amends that policy,” Knopp said of his amendment. “It really is time to put this to bed.”
Bagley, who asked that his name be removed from the resolution after Knopp’s amendment altered it so drastically, cautioned that a return to the old informal invocation policy would leave control in the hands of the sitting Assembly president.
Gilman added that the previous policy was vulnerable to “outside groups” making political statements through “offensive” invocations. Gilman equated The Satanic Temple with the Freedom From Religion Foundation (FFRF).
“This is a political group,” he said of the FFRF, “and it’s basically trying to force the Assembly to stop a practice which has worked for 40 years on the Assembly.”
Even though the plain language of R2016-056 prevents atheists from delivering the invocation, Gilman said the Assembly has been applying it constitutionally.
“As we were applying this, we allowed people who didn’t believe in God — atheists — to give an invocation. We did that again this evening,” he pointed out, saying the issue was worth litigating.
Knopp responded that he is willing to go to court over an issue with which he morally agrees, but not over excluding residents from the invocation.
Fiscal Conservatism and Religious Conservatism at Odds
During debate, Welles stuck to a familiar theme: the country was founded as a Christian nation.
“For our first 200 years, the Bible was part of our public school curriculum,” he said. “The children were taught to read the Bible in order to learn God’s plan of salvation. 200 years later, in 1832, the Bible was removed from the school curriculum.”
Welles noted the Constitution was ratified while the Bible was taught in public schools.
“No thought was ever given to separating church and State,” he continued. “The only source of morality and civility was from the Bible and was taught in school at the time the Declaration and Constitution were promulgated. The church facilitated civility and morality, the environment in which the State could function. They’re not in competition or exclusive of one another.”
“Obviously, the ‘creator’ referred to in the Declaration of Independence was the Lord our God, author of the Bible,” said Welles. “Does it not make sense that an astute electorate would absolutely insist that the Assembly seek the guidance of God, the Bible’s author, the only creator God that there is?”
Ruth Lawler of Kasilof, who also testified in person, supported Welles’ interpretation that R2016-056 protects Christian prayer:
A republic protects the rights of minorities but the majority has the loudest voice. Our representatives make laws based on what is best for the most people. Unfortunately, history is no longer taught, having been replaced by social studies which tend to champion socialism and individual rights over majority rights. Chaos and bloodshed have arrived. We have free speech, slowly being taken away, but allowing Satanist prayers in a group that mostly believes in God is absurd. We would have to walk out rather than pray for God’s enemy.
Passing the gavel to a colleague so that she could participate in debate, Cooper responded that allowing someone of a different belief system to give the invocation does not mean that Christians are not being true to their faith.
“In my opinion, the policy we now have has many problems. It feels to me that we may be attempting to legislate to exclude a couple of groups and/or individuals that are square pegs not fitting into this perceived round hole,” Cooper said. “The very notion that any belief system would want to exclude another belief is beyond me. We represent every single person in this borough.”
“As Assembly members, we are tasked with fiscal responsibility. At what point do we decide that tax dollars should be spent on this argument?” she asked.
Written and in-person public testimony was roughly split on whether to restrict the invocation, but 10 of 11 borough residents who provided written testimony on Navarre’s ordinance opposed spending $75,000 to fight a potential lawsuit.
If the Assembly votes against R2016-072 on reconsideration, Navarre will have to reintroduce his resolution for the $75,000 appropriation.
Assembly Member Wayne Ogle (Kenai) joined Gilman, Welles, and Bagley in opposition to R2016-072.
At least one Assembly member is looking forward to the potential of an open invocation policy.
“I look forward to how our invocations evolve over the next few months,” said Assembly Member Willy Dunne (Homer). “I spent a lot of time thinking about wouldn’t it be wonderful, wouldn’t it be powerful, to have invocations from poets and artists, biologists, physicists, astronomers, philosophers, anybody who wants to help open our eyes, our hearts, our minds to other ideas?”