Borough chooses to not appeal court decision, updates invocation policy

Borough chooses to not appeal court decision, updates invocation policy

Tuesday night, the Kenai Peninsula Borough Assembly voted to not appeal a Superior Court decision that cited the borough’s invocation policy as unconstitutional. The assembly also passed a resolution changing current invocation policy to allow a wider group of people the ability to offer invocations.

Last month, the borough lost a lawsuit against plaintiffs represented by the American Civil Liberties Union of Alaska in a fight over its invocation policy, which allows certain groups and individuals to offer an invocation at the beginning of each meeting. The plaintiffs, Lance Hunt, an atheist, Iris Fontana, a member of The Satanic Temple, and Elise Boyer, a member of the Jewish community in Homer, all applied to give invocations after the policy was established in 2016. All three were denied because they did not belong to official organizations with an established presence on the peninsula. They sued and the ACLU Alaska agreed to represent them.

Peterson ruled the invocation policy, passed in 2016, violates the Alaska Constitution’s establishment clause, which is a mandate banning government from establishing an official religion or the favoring of one belief over another. Article 1, Section 4 of the constitution provides that “no law shall be made respecting an establishment of religion.”

“The Resolution is inclusive of tax-exempt religious associations serving residents of the borough,” Peterson wrote. “It is not inclusive of every religious view or belief practiced by the residents of the Kenai Peninsula.”

Kieth Hamilton of Alaska Christian College gave an invocation at the beginning of Tuesday’s meeting. During public testimony, he urged the assembly to appeal the Superior Court’s decision regarding the borough’s current invocation policy.

“This isn’t an agenda item to check off the list or a political-charged speech given during a meeting, but rather a solemn time to remember our Lord’s call for us to pray for our nation,” Hamilton said.

He read from the Old Testament, 2 Chronicle 7:14, which says, “People, who are called by my name, will humble themselves and pray, and seek my face, and trim of their wicked ways, and I will hear from heaven and forgive their sin and heal their land.”

“I want our land to be healed, and I want peace and prosperity on our peninsula specifically,” Hamilton told the assembly. “I believe each of you has been appointed to the solemn task of governing us as you’re elected to this office. These invocations bring us all to a place of dependence, not just on ourselves, but to God who created us and gives us wisdom beyond ourselves to govern.”

Greg Andersen from Kenai spoke in opposition to appealing the court’s decision.

“Countless hours have been wasted on this,” Andersen said. “The borough will be receiving the bill from the ACLU in the next two weeks for their lawyer fees. That dollar amount is an unknown, but I’m sure it will be a considerable amount that the borough will have to pay. Think of all the services that those funds could have paid for? I work very hard in order to pay my property taxes. Gambling on the unknown with these tax dollars is unacceptable. These tax dollars need to be spent on services for the borough. It is time to move on.”

Shawn Rice of Kenai said pursuing an appeal would waste taxpayer money and time.

“The waste of time and money at the point is shameful,” Rice said. “Those of you who have voted to keep this process going, you have had at least probably six or eight opportunities to end this, to end the discrimination, to end the bigotry based on ancient texts. Whether it’s my opinion or your opinion as to what the reality of our existence here is, is irrelevant. This is a government facility; this is tax dollars.”

Some members of the public felt they weren’t being heard by the assembly. Amanda Bird from Kenai said she wanted her comments on the record either way.

“I’ll be brief because I’ve come to enough of these to realize public opinion doesn’t appear to factor into the decisions that you all make,” Bird said. “I just would like it to be on record that as a citizen of this borough, I am appalled by the voting record on this item and I wanted to come up and let you all know it’s a mistake to appeal this.”

Assembly member Kelly Cooper reassured the crowd that public opinion does matter.

“I do hear you,” Cooper said. “We are tasked with governing and making the best decision for the majority. One of the things about this body is that we bring our own personal beliefs and our own personal experiences to this, but that shouldn’t be how you vote. That’s just part of your guidance in making that decision.”

When it came time for assembly comment, Blakely said he’s heard several comments from citizens outside of Tuesday’s meeting who support the appeal.

“I would say a lot of the people I am associated with, and who I talk to, would like this appealed, “ Blakely said. “Everyone that is here and has made their concerns known, I would like you to know there are other people in the world. I’m sure you understand that. Those people would see this go in a different direction.”

Assembly member Willy Dunne opposed an appeal, saying he didn’t like wasting or gambling with taxpayer dollars.

The assembly narrowly voted, 5-4 to not appeal the court’s decision. Assembly members Paul Fischer, Brent Hibbert, Dale Bagley, and Norm Blakely voted to advance to the appeals process.

Next on the agenda was an amendment of the current invocation policy that would “broaden the scope of eligible invocation providers to better reflect the diversity of beliefs in the borough,” the resolution stated.

Many members of the public supported the amendment, but offered suggestions on how to enhance it, such as giving invocation speakers time limits, barring those who don’t show up for their scheduled slot from giving an invocation for a year, limiting the ability to provide invocations to once per year, per provider and to have no commercial message of any kind. None of the suggestions were added to the amendment.

Peggy Peterson of Sterling said she was concerned invocation providers wouldn’t show up to assembly meetings and suggested no-shows be taken off the list of eligible invocation providers for a year.

“Many times this last year a person was scheduled to give an invocation, but didn’t show up,” Peterson said. “So Mr. Ogle gave it instead. This meant that others on the list were denied the opportunity. As this new resolution is written, the same thing could happen unless there’s some kind of provision to stop it.”

Rice spoke in support of the new amendments, saying the new policy was less discriminatory.

“If you’re trying to maintain the moral high road, then not excluding people is essentially your wheelhouse, so I don’t know how it wound up here in this form,” Rice said of the former policy. “What’s before you now is inclusive. Anybody can do it. And guess what? Every now and then you’re going to hear something you don’t agree with in these chambers. Every now and then you’re going to hear a representative of the Satanic Temple and you’re going to hear an atheist and you’re just going to have to deal with it.”

Bagley responded to Rice and said if you were a Muslim or a Jewish person that you could offer invocation in the previous policy, but that the individual had to be a part of a group, present on the peninsula.

Rice responded by asking Bagley where the local groups for Islam and Judaism were.

“They don’t exist, which means those people are excluded,” Rice said. “Now those people can speak in a non-invocation moment, but as far as being allowed or selected to present an invocation, those people were discriminated against because those groups don’t exist here.”

Fischer asked Rice if he thought the person giving invocation had to be a resident of the borough. The policy includes a residency requirement.

Rice said that being a resident was a fair guideline.

“So you discriminate that way,” Fischer said. “How about age? Can someone who’s 16 sign up?”

“To say I’m discriminating against people outside of the borough isn’t to say that I’m discriminating against religion,” Rice said to Fischer. “In reality, fine. If someone from Talkeetna wants to come give the invocation here, open it to that.”

Several members of the public said they would prefer a moment of silence.

“I believe the new policy is a step in the right direction, but in my reading, there are at least 12 portions (of the amendment) that I see as sketchy or open to interpretation,” Daniel Lynch of Soldotna said. “A moment of silence gives us all a chance and we’re all involved. I got two minutes left and I’m going to take a moment of silence right now just so we can get used to it.”

Thirty seconds later, Lynch ended the silence saying the moment “didn’t hurt anybody.”

The new amendment passed with 7 in support and 2 in opposition. Both Fischer and Blakey voted against the policy amendment.

The borough has one meeting left before 2019. Starting next year, the assembly will begin taking volunteers to provide meeting invocations.

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