Despite threats of a lawsuit, the Kenai Peninsula Borough (KPB) Assembly on Tuesday restored an invocation policy that excludes individuals who are not part of a religious group from delivering the invocation at Assembly meetings.
After a member of The Satanic Temple delivered the invocation at the beginning of an August meeting, the Assembly passed a resolution (R2016-056) that limited the invocation to members of religious groups that meet regularly in the KPB.
The ACLU of Alaska advised the Assembly that the resolution created an unconstitutional religious test, giving members until November 28 to resolve the issue.
Instead, the Assembly overrode Mayor Mike Navarre’s veto of the resolution.
Confronted with the possibility of spending $75,000 in legal expenses, the Assembly voted last month to return to an informal invocation policy that does not facially discriminate against unaffiliated atheists and religious adherents.
Assembly Member Blaine Gilman (Kenai), who sponsored R2016-056, moved for reconsideration of the informal policy proposed by Assembly Member Gary Knopp (Soldotna).
The final vote Tuesday ended up being a choice between the policies sponsored by the two members.
“There is a balance here,” Gilman said during Tuesday’s meeting. “The state is not supposed to establish any religion… but also the state shall not infringe on the free exercise thereof.”
“My personal fear here is that we embrace a point of view, a belief system, which is an atheistic belief system, just like it would be improper for us to embrace a purely Christian religious belief system. By not allowing invocations, that’s basically saying, in my mind, religion is a superstition and that we should not allow that in front of a legislative body. And that, in my mind, is a violation of people’s right of freedom of religion,” he elaborated.
Knopp’s resolution did not actually eliminate the invocation, but rather returned the Assembly to the previous unwritten policy under which the invocation was consistently given by Christians until it was opened up to other faiths this year.
“If we go back to status quo, we can manage the issue. We did it for 40-plus years,” Knopp said, defending his resolution. “The problem is if we do reconsider and amend, we virtually end up with a policy that is either discriminatory in nature and will open us up to litigation… [or] we have a convoluted policy that does absolutely no more than if we had no policy.”
“Things need to be in writing, and we shouldn’t be afraid to have our policy in writing,” Gilman argued.
“For the record, I’m not against having a policy. I think policies are good,” responded Knopp, though he clarified, “I’m against having a discriminatory policy.”
“This policy would even exclude Jesus Christ from being able to give us an invocation,” Assembly President Kelly Cooper (Homer) said of R2016-056.
Knopp’s resolution deleting that restrictive policy failed Tuesday under reconsideration on a vote of 4-4. Assembly Member Willy Dunne (Homer), who voted for the informal policy in November was absent.
Perhaps recognizing the impending result, Knopp attempted to postpone the vote until January, but his motion failed.
Mayor Warns, “There Will Be Costs.”
The procedural back-and-forth of reconsideration and amendment left several Assembly members visibly confused.
Assembly Member Paul Fischer (Soldotna), who expressed regret in November for supporting Knopp’s resolution and voted Tuesday to reconsider it, later voted to support the informal policy.
Fischer was joined by Knopp, Cooper, and Assembly Member Brandii Holmdahl (Homer).
Holmdahl expressed frustration at the amount of time the Assembly has “wasted” on the issue.
“That being said, I hope it’s before us again at our next meeting because I am not comfortable — even though I see it as a waste of our time — I’m not willing to allow something to stand that discriminates against residents in this community,” said Holmdahl.
Following the vote, Navarre informed members he will be reintroducing an appropriation next month to cover legal expenses.
“There will be costs,” he warned. “There will be outside attorneys. And whether or not we get pro bono service or help from legal firms, we will have some responsibility to monitor the proceedings, especially because, should we lose, we will pay the prevailing party’s legal fees, also.”
When Gilman asked for reconsideration at the Assembly’s meeting in November, ACLU of Alaska Executive Director Josh Decker said the ACLU expected Assembly members to abide by the Constitution at their December 6 meeting.
The ACLU of Alaska did not respond Wednesday or Thursday to requests for comment.
KPB Residents “Very Annoyed” By Use of Tax Dollars to Defend Policy
Pro bono help for the KPB was suggested during public testimony by Wayne Floyd of Kenai. There are several legal organizations that will come to the borough’s defense, he said, like the pro-“religious liberty” American Center for Law and Justice (ACLJ).
“It is not about invoking Jesus Christ every time,” Floyd said of the invocation. “It is about the right of local communities to be unfettered by groups that would like to silence them and by the efforts of the federal government to put its hand on the local government and tell them what they can and cannot do.”
Floyd and his wife Patti said that invocations that are not “positive” should neither be encouraged nor tolerated. Patti Floyd listed three examples of groups — Jews, Methodists, and Presbyterians — from whom she, as a Christian, would be willing to hear invocations.
Methodism and Presbyterianism are denominations of Christianity.
What I heard you say is that it’s appropriate to discriminate against people whose message you disagree with, Knopp told Patti Floyd. Is that right?
As Americans, she responded, it is our right to maintain the health of our communities.
Knopp said that while he would prefer to have some kind of invocation at the start of Assembly meetings, he acknowledged the majority of those who offered public comment would prefer the Assembly switch to a moment of silence and save tax money from being spent in a lawsuit.
“That’s my money,” Ken Landfield of Homer told members. “I will be very annoyed if you have to spend my money to defend yourselves for a resolution that has been pointed out to be unconstitutional.”
“If all you’re hearing are people from other Christian groups, you’re in an echo chamber,” added another Homer resident, Joanne Lofgren. “I don’t want my money to go to a lawsuit instead of schools.”
All six people who testified telephonically from Homer opposed the restrictive invocation policy sponsored by Gilman.
“I’m working with the homeless kids in the community, and you’re worried about who’s going to come in and pray?” asked an incredulous Krista Schooley of Kasilof.
Schooley pointed out that while she is trained as a minister, under Gilman’s policy, she could not deliver the invocation because she is not the pastor of a local church.
“For those who say that it is a longstanding tradition for public meetings to begin with invocations, I remind them that customs change over time,” said Halibut Cove resident Diana Conway.
Founding Americans might have resorted to dueling to resolve their differences, whereas today politicians do so with tweets, noted Conway.
Assembly Acts Despite Overwhelming Testimony in Opposition
For the second meeting in a row, Gilman equated The Satanic Temple with the Freedom From Religion Foundation (FFRF), a group that challenges the intersection of church and state.
The Satanic Temple goes around the country giving invocations with the goal of getting rid of invocations entirely, said Gilman.
Indeed, FFRF led a campaign at the beginning of the summer — around the time the KPB Assembly started receiving complaints about the invocation’s exclusivity — to eliminate prayer in several public settings. And an invocation by The Satanic Temple, given with the support of FFRF, did prompt the Phoenix City Council to switch to a moment of silence.
However, FFRF has not officially acknowledged any involvement in the KPB.
Gilman pointed out that he was the Assembly president when the Satanic invocation occurred.
“I will defend people’s right from any religion… to come up here and give an invocation, but I don’t want to stop the invocation,” he said.
Nathan Lockwood, a Kenai attorney, acknowledged that Gilman is also an attorney who, in crafting his resolution, used a 2014 U.S. Supreme Court decision upholding a similar invocation policy in Greece, New York.
“What has been omitted from Mr. Gilman’s analysis and his representations to the borough is that case also requires that there be no discrimination in that policy,” Lockwood testified.
People who practice their faith independently are facially excluded by Gilman’s policy.
“You can’t pick winners and losers when it comes to the First Amendment,” Lockwood told Assembly members. “What we have now is certainly inviting litigation and discrimination.”
Speaking to that discrimination, a practitioner of Judaism from Homer, Elise Boyer, pointed out that the Assembly passed Gilman’s resolution on October 11 during Kol Nidre, the start of Yom Kippur.
“My heart wants you to feel what I feel every time I’m in a public place and the invocation closes, ‘In Jesus’s name we pray,'” Boyer told Assembly members. “I do not pray in Jesus’s name any more than you pray in Satan’s name. My heart wants you to feel what I feel when people say loud and proud that the Constitution — my Constitution — was only meant to protect Christians. My heart and my stomach want you to feel how sickening that is…”
There is only one synagogue in the KPB, located in Sterling.
Several people who identified as Christian during public testimony also advocated for eliminating the restrictive invocation policy.
Judy Jenkinson of Kasilof said she would be barred from delivering the invocation because she hasn’t yet found a congregation with which she feels comfortable.
Soldotna resident Julie Ball testified that she would prefer a moment of silence. She quoted from Matthew 6:5-6:
5 “And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others. Truly I tell you, they have received their reward in full. 6 But when you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you.”
Despite public testimony being overwhelmingly in opposition to the restrictive invocation policy, that is the policy to which the KPB Assembly reverted Tuesday.
Knopp is leaving the KPB Assembly to fill the House seat vacated by Rep. Kurt Olson (R-Soldotna). If his replacement, yet to be named, does not support an open invocation, then R2016-056 is likely to remain the official policy of the Assembly until a legal challenge.
“I’m completely appalled by the conduct of this Assembly,” Carrie Henson said following the vote.
Henson, a member of the Last Frontier Freethinkers, has given the opening invocation on multiple occasions.
Pointing to the balance of testimony Tuesday, Henson told the Assembly, “This is a beautiful community filled with lovely people which this body continues to ignore.”