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ACLU Makes Good on Threat, Sues Kenai Penunsula Borough Assembly

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Photo by Joe Gratz.

The ACLU of Alaska filed a lawsuit Wednesday challenging the Kenai Peninsula Borough (KPB) Assembly’s policy restricting the invocation to members of religious groups.

Following an invocation by Iris Fontana of The Satanic Temple, the KPB Assembly voted October 11 to limit the invocation to members of religious groups that meet regularly in the borough.

The Assembly flirted with returning to an informal first-come, first-served policy, but ultimately voted earlier this month to retain the restrictive resolution (R2016-056), despite public opposition and warnings from the ACLU of Alaska that it establishes an unconstitutional religious test.

Both Fontana and self-described atheist Lance Hunt delivered invocations before the Assembly this summer under the prior informal policy. When they each signed up to give the invocation again, they were rejected under R2016-056.

“It’s not just an abstract principle; it’s discriminatory in practice,” ACLU of Alaska staff attorney Eric Glatt said of the resolution.

On Wednesday, the ACLU of Alaska filed suit in state Superior Court.

“Rather than picking invocation speakers in a fair and neutral manner, such as first-come, first-served, the Borough has decreed that some speakers are acceptable and others—like our clients Lance and Iris—are not,” Glatt said in a press release. “This violates the Constitution’s guarantees of equal protection, freedom of speech, freedom of association, and not favoring one religious practice over another.”

“We’re very disappointed that we have to go to court today,” ACLU of Alaska Executive Director Joshua Decker declared Wednesday during a press conference.

Glatt said the ACLU of Alaska felt compelled to seek a remedy in court because, after sending multiple letters to the Assembly and attending three meetings, the Assembly is still “reluctant to accept” the message from the ACLU that restrictions on the invocation are unconstitutional.

KPB Mayor Mike Navarre announced last week that he will request an appropriation from the Assembly to cover costs of the pending litigation. He estimated
those costs to be $75,000.

Decker expects the Superior Court to rule in the second half of 2017.

The case has been initially assigned to Judge Erin Marston.

Tug of War Over Town of Greece

“The separation of church and state is a core principle of Alaskan and American democracy, as are free speech and equal protection under the law. These principles are… among the cornerstones of our form of self-government,” the ACLU of Alaska writes in its legal complaint.

Legislative invocations do have a long, storied history and have been upheld by the courts, Glatt acknowledged Wednesday.

However, he added, the Assembly’s invocation policy is “not of a kind that the Supreme Court has upheld.”

One invocation policy that was upheld was in Greece, New York. There, speakers were chosen from a list of local congregations, which were almost exclusively Christian.

The U.S. Supreme Court ruled in Town of Greece v Galloway that the town did not have to bring in people of other faiths from outside the community to achieve religious diversity.

Blaine Gilman, a Kenai attorney and Assembly member who sponsored R2016-056, relied on Town of Greece when crafting the Assembly’s new policy limiting the invocation to religious groups in the KPB. The policy states that if there is a question as to a group’s authenticity, the Assembly president should consider whether the group would qualify for IRS tax exemption.

“[The Satanic Temple] has not sought tax-exempt status, because we believe that no church should be tax exempt,” Fontana wrote in her application to give the invocation.

Fontana was rejected on November 7.

Though Greece’s invocation policy was upheld, Justice Samuel Alito noted in his concurring opinion that “the town made it clear that it would permit any interested residents, including nonbelievers, to provide an invocation, and the town has never refused a request to offer an invocation.” (emphasis added)

Alito also wrote that one of the purposes of congressional prayer, “and presumably one of its effects, was not to divide, but to unite.”

“The Resolution divides, rather than unites, the residents of the Kenai Peninsula Borough,” the ACLU pointedly writes in its complaint. “The Resolution violates the Establishment Clause of both the Alaska and United States Constitutions by running afoul of the governmental obligation of neutrality and deeming only some religious associations to be worthy of providing invocations.”

Assembly members have chosen not to listen to our logic or the Supreme Court’s wisdom, Decker said Wednesday, confident that Town of Greece supports the ACLU’s position.

Atheism and the First Amendment

Courts have held for over 50 years that atheists also enjoy constitutional protections granted to religious affiliates.

In a 1961 decision, Torcaso v Watkins, the Court said that governments cannot “constitutionally pass laws or impose requirements which aid all religions as against nonbelievers” and cannot “aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” In a footnote, the Court defined secular humanism as a religion without belief in the existence of God.

The Court wrote in Epperson v Arkansas (1968) that “The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”

More recently, Justice Anthony Kennedy wrote for the majority in Town of Greece,
“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.”

When Hunt gave the invocation at the Assembly’s July 26 meeting, he told members, “I focus on the positive attributes of humankind, like love, compassion, and empathy. I draw inspiration from the creations and advancements of our species.”

“I simply don’t believe in deities,” Hunt explained Wednesday.

Gilman publicly accepted last week that atheist groups are considered religions by the Court and are therefore entitled to the same protections.

Consequently, representatives of the Last Frontier Freethinkers, comprised of “agnostics, Unitarians, atheists, skeptics, secular humanists, and rationalists,” have given the invocation even after the adoption of R2016-056.

But Hunt, who says he is not affiliated with any group, was told on November 15 that he could not give the invocation under the new policy.

Hunt has commented frequently on the Last Frontier Freethinkers’ public Facebook page, but is not listed as a member on the group’s Meetup site.

Glatt noted Wednesday that local governments are the backbone of the American democratic system.

“These are neighbors making decisions over the lives of neighbors,” he said of the Assembly.

“I’m involved in my community and I try to make the Kenai a better place for my neighbors,” Hunt said, inviting comparison. “Just because I don’t belong to a religious association, I don’t understand why the Assembly felt the need to prevent me from offering a similar invocation in the future.”

“I didn’t want to bring this lawsuit forward,” he told reporters.

Yet after the Last Frontier Freethinkers announced October 18 on Facebook that the ACLU was getting involved in the invocation debate, Hunt commented, “The real question is, will the ACLU help in a legal battle?”

Hunt’s Facebook page was either deleted or deactivated Tuesday afternoon.

He said Wednesday he often withdraws from social media during times of stress, and this is a stressful time.

The ACLU says Hunt should not have to identify with any group to give the invocation at Assembly meetings.

“Freedom of speech includes the right to associate with others in exercising this right. It also includes the right not to be coerced into associating with others in order to exercise this right,” the ACLU writes in its complaint.

Contrary to those First Amendment protections, “The Resolution forces individuals to associate with groups or other individuals in order to be eligible to give an invocation before the public meetings of the Kenai Peninsula Borough Assembly,” it adds.

Decker said the ACLU of Alaska’s resources will not be stretched thin by this suit and another announced last month that challenges the State’s de facto ban on second-trimester abortions.

“This is why the ACLU exists,” he said, promising to “pursue both cases vigorously and zealously.”

Craig Tuten moved from Florida to Alaska with his wife Rachael in 2006. He studied history at Florida State University while everybody else was having a good time. It is hard to list a low-wage job he hasn’t briefly held.

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