Assembly overturns mayor’s veto of invocation policy

The Kenai Peninsula Borough Assembly will keep its invocation policy for now.

The assembly passed a policy at its Oct. 11 meeting outlining who can give the invocation that opens each of its meetings. Multiple members of the public spoke out against it, saying it was too restrictive and violated freedom of religion because it required those giving the invocation to be members of a religion with an established presence in the borough.

The American Civil Liberties Union stepped in last week, sending a letter to the borough assembly asking them to drop the invocation policy or to eliminate the invocation altogether. The organization, which advocates for constitutional liberties, did not expressly threaten a lawsuit, but the letter included a deadline of Nov. 28, 2016.

Borough Mayor Mike Navarre vetoed the invocation policy Tuesday, just before the assembly’s regular meeting.

“I see no real problem with the practice in place before this policy was adopted,” Navarre wrote in his memo to the assembly. “Being inclusive rather than limiting those who may give an invocation is better public policy and less likely to get the borough involved in expensive litigation. Local ministers who have given invocations in the past have indicated support for an inclusive policy.”

Some assembly members disagreed. In a 6-3 vote, they overturned the mayor’s veto and left the new policy in place. The same members who voted for the policy on Oct. 11 supported overturning the veto, and the three who opposed it — assembly members Willy Dunne and Brandii Holmdahl and new assembly president Kelly Cooper — supported the mayor’s veto.

The overturn is not likely to be the last discussion of the policy, though. Several assembly members said they would support an amendment to the policy at the next meeting. Assembly member Dale Bagley said he would bring forward an amendment similar to the one he and Cooper proposed at the Oct. 11 meeting, which would have changed the word “prayer” in the policy to “invocation” and changed “religious associations” to any group that meets to share a religious perspective or “other interest or belief that is very important to the attendees.”

Assembly member Stan Welles opposed the veto. He said including groups of all religions in policies of giving invocations before public bodies “is tantamount to killing public prayer” and said he would move that the policy be amended to only include Christian denominations.

“Respectfully, I submit that when James Madison drafted the First Amendment that he used (the word) ‘religion,’ whereas today if we were writing it, we would say ‘denomination,’” Welles said. “… If we were going to litigate, I would really encourage an effort to litigate for the removal of the stipulation or modify it to read, ‘must be open to clergy or persons of any denomination that worships the Lord God our creator, author of the Bible.’”

Navarre expressed concerns that the policy makes the borough financially vulnerable to lawsuits. As a public litigant in Alaska, if the borough lost in court, it would have to cover the legal costs of both parties, he said. Navarre called the policy “flawed and legally indefensible” and said the assembly could still develop a better policy in the future if the legal department had more time to review how it could be done.

“I think that exposing us to this kind of financial liability without really going through a more deliberate process in order to determine the best defensible policy is not our best avenue to proceed,” he said.

However, the proponents disagreed. Assembly member Blaine Gilman, who was the assembly president until Cooper was elected to the seat Tuesday night during assembly reorganization, said he thinks the policy is defensible and the assembly ought to have a policy if it is going to allow invocations.

“I think it’s better if this resolution stays in place than having no policy, which is where we’ll be if the veto is not overridden, and like (it was) said, we can amend it later, but right now it’s better to have some policy in place than no policy in place,” he said.

Assembly member Willy Dunne said he opposes the “religious test” aspect of the policy and that there had not been enough time for the public to review the proposed policy because it was a resolution, which can be introduced and passed at the same meeting without a public hearing. The discussion has been ongoing in the assembly since at least June, when Gilman originally proposed an ordinance eliminating the invocation altogether which was voted down before introduction after divided public response. The policy itself has only been on the table since Oct. 11. Many members of the public didn’t get to weigh in, especially those from outlying areas, Dunne said.

“Even though the discussion has been going on for a while, the actual policy that was adopted was given very little public notice and just discussed at our assembly meeting with some limited testimony, and all my memory is all the testimony was opposed to it,” he said.

Joshua Decker, executive director of ACLU Alaska who sent the letter to the borough last Thursday, said in an email the organization was disappointed in the assembly’s decision.

“We applaud Kenai Peninsula Borough Mayor Mike Navarre for listening to our concerns and vetoing the Borough Assembly’s exclusions on who may give religious invocations, but we are disappointed that the Assembly doubled-down on its unconstitutional policy and overrode the mayor’s veto tonight (Tuesday),” Decker wrote in an email. “Though we hope the Assembly will go back to letting anyone in the Borough offer invocations, we stand ready to protect the Constitutional rights of all religious believers, agnostics, and atheists.”

Reach Elizabeth Earl at elizabeth.earl@peninsulaclarion.com.

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