The discussion over the Kenai Peninsula Borough Assembly’s invocation policy isn’t over yet.
After the assembly passed a policy setting out guidelines for who can give the prayer before its regular meetings on Oct. 11, the Alaska chapter of the American Civil Liberties Union sent a letter to the borough calling the policy unconstitutional and indirectly threatening legal action if the assembly did not repeal or modify its policy to be more open.
The policy outlines that anyone seeking to give an invocation before the meetings must be a part of a religious group with an established presence on the Kenai Peninsula. A chaplain or the leader of a religious organization has to submit a letter to the borough clerk’s office and become part of an “associations list,” from which the assembly president designates someone to give the invocation.
Borough Mayor Mike Navarre formally vetoed the resolution setting the policy before the Oct. 26 meeting, saying he thought the policy would open up the borough to litigation. In a 6-3 vote, the assembly overturned the veto, with plans to amend the policy at a future meeting.
For the docket for the Nov. 22 meeting, Assembly President Kelly Cooper and assembly member Dale Bagley have proposed an amendment that would soften some of the requirements and broaden the base for who can give an invocation. The proposed amendment would change the word “prayer” in the policy to “invocation” and would extend eligibility from just religious associations to include groups that meet regularly for the purpose of sharing an “interest or belief that is very important to the attendees and reasonably appears to meet the Internal Revenue Service’s tax exemption criteria” for a religious organization.
The policy would also set a cap on how many times any one respondent can give an invocation, limiting it to three in a calendar year and no more than twice in a row. The amendment would also add language recommending their invocations to be three minutes or less, similar to public comments.
Cooper and Bagley wrote in their memo to the assembly that the amendment does take the mayor’s litigation concerns into account.
“In view of the concerns expressed by Mayor Navarre in his veto of (the invocation policy), including the concerns regarding potentially expensive ongoing litigation, we believe this is an important step to take if the assembly wishes to continue including invocations at the beginning of its meetings,” they wrote.
The amendment isn’t the only thing on the assembly’s agenda related to the invocation. Navarre also plans to introduce an ordinance appropriating $75,000 for potential legal defense against lawsuits related to the invocation policy.
The legal precedent for beginning public meetings with prayers is still in flux, with cases pending across the country, so the borough would probably need to seek advice in the case of a suit, according to a memo to the assembly from Navarre and borough attorney Colette Thompson.
“Outside counsel will likely be needed for the legal department to properly advise the assembly and will be needed if litigation ensues,” they wrote.
Joshua Decker, the executive director of the Alaska ACLU chapter, said despite the amendment, the fundamental problem with the policy remained that it still set a barrier on who can participate the invocations. Removing or amending the policy to make it open to everyone is a better idea than setting aside $75,000 to defend the borough in the case of litigation, he said.
“Once government invites prayer into the public sphere, it has to be open to everyone,” he said.
The resolution amending the invocation policy is a resolution and can be introduced and heard in one night. It is currently scheduled for the Nov. 22 meeting. The ordinance appropriating funding for legal defense is scheduled to be introduced Nov. 22 and heard Dec. 6.
Reach Elizabeth Earl at elizabeth.earl@peninsulaclarion.com.
