One of the biggest complaints members of the public have had about the Kenai Peninsula Borough Assembly’s invocation policy lawsuit is the cost. As it turns out, neither the borough nor the plaintiffs are paying the full bill.
The plaintiffs are represented by the American Civil Liberties Union of Alaska, a nonprofit that regularly litigates cases around the U.S. based on civil rights. The organization got involved in the controversy over the assembly’s invocation policy, which requires anyone offering a prayer before the assembly’s regular meetings to be part of an organization that meets regularly to share a religious perspective or a chaplain, in October 2016 and formally sued the borough in December.
The ACLU sued on behalf of two residents, Lance Hunt and Iris Fontana, and Elise Boyer of Homer joined as a third plaintiff in January.
On the borough’s side, the Alliance Defending Freedom is offering legal counsel and footing at least part of the cost. The Scottsdale, Arizona-based nonprofit regularly litigates cases around the U.S. related to religious freedom, abortion and marriage rights. Notably, the organization represented the town of Greece, New York in the Town of Greece v. Galloway case, which the assembly has cited as a precedent for its invocation policy.
Brett Harvey, an attorney with the Alliance Defending Freedom, is co-representing the Kenai Peninsula Borough with Anchorage attorney Kevin Clarkson, whom the borough contracted independently. Harvey represented the town of Greece before the U.S. Supreme Court in 2014, a case that resulted in the Supreme Court upholding the right of the Greece city council to begin its meetings with a prayer, as long as it is open to people of all religions.
The borough’s policy does not draw any lines other than requiring someone to be part of a group or a chaplain. Harvey said governmental bodies can set rules on public participation, and in this case, the invocation is open to religious groups of all types.
“In this case, they have said any assembly within the community that meets regularly to discuss their religious perspective, regardless of what the perspective is … whatever that faith is, quite frankly, even if you deify Satan,” he said. “If you have an assembly that you gather together and discuss these things and further your religious perspective, you are invited to appoint someone and put them on the list.”
Federal courts have repeatedly upheld the right of legislative bodies to begin their meetings with prayer, Harvey said. The borough’s practice is very similar to the one that Greece, New York had in place, he said.
“It happens across the country at virtually every government level and has for centuries,” he said. “… those who really don’t want prayers, that disapprove that they have them at all, that’s what we’ve been litigating for the last 20 years in a variety of contexts.”
The borough’s legal department staff was doing research on attorneys that had litigated similar cases when it reached out to the Alliance Defending Freedom. Both Harvey and Clarkson have worked on similar cases. The Alliance Defending Freedom is working pro-bono on the case, which means they are covering the borough’s costs except for incidental expenses like copies, said Borough Mayor Mike Navarre. The costs are not firm at this point, though, he said. The case is still making its way through the courts, currently on its way back to state court after the plaintiffs filed to remove it from federal court in January.
“We’re trying to do it as cost-effectively as we can and still defend the code,” Navarre said.
The ACLU and the Alliance Defending Freedom have clashed before on the same issue. During the arguments on Town of Greece v. Galloway, the ACLU of New York filed an amicus brief in the Supreme Court supporting the plaintiffs. In 2015, they met again when the ACLU of North Carolina sued Rowan County, which began its county commission boards with a prayer and Harvey co-counseled on the case. The U.S. Court of Appeals for the 4th Circuit upheld the county’s policy in September 2016.
Both organizations have deep pockets, funded by donations and membership dues. The Alliance Defending Freedom, a 501(c)3 nonprofit, worked with an approximately $48.3 million budget in 2014, the most recent year of tax documents available. The organization also has a supporting foundation, the ADF Foundation, reporting $4.8 million in net assets at the end of 2014, according to tax documents.
The ACLU, a 501(c)4 nonprofit, listed an approximately $50.6 million budget in 2014, according to its Form 990 tax documents. It also has a supporting foundation, the American Civil Liberties Union Foundation, that recorded approximately $327.6 million in assets in 2014, according to its tax documents. The ACLU of Alaska, registered as its own nonprofit, recorded $57,600 in net assets in 2014, and its corresponding foundation had $374,894 at the end of 2014, according to tax documents.
If the borough loses the lawsuit, though, it’ll still get stuck with the fees. Alaska law makes public entities liable for the legal fees of both parties if they lose a lawsuit, a concern Navarre voiced to the assembly multiple times during the discussion over the suit.
Reach Elizabeth Earl at elizabeth.earl@peninsulaclarion.com.
