Result in borough invocation case could take 6 months

With the open court discussion done, the plaintiffs and the Kenai Peninsula Borough may have to wait up to six months for a decision in the legal battle over the assembly’s invocation.

The attorneys for the borough and for the American Civil Liberties Union, which represented three plaintiffs from the borough, argued their cases before a judge on April 11 in Anchorage about the legality of the Kenai Peninsula Borough Assembly’s policy on who can give invocations. Neither side disagreed about the material facts that led up to the lawsuit, so they progressed to an oral argument — in which both sides make their case to a judge rather than to a jury — before the judge reviews the case and makes a decision.

Under Alaska court procedures, that ruling could come anytime between now and six months, said Kenai Peninsula Borough Attorney Colette Thompson at the assembly’s April 17 meeting in Seward.

When assembly member Willy Dunne asked whether the borough was planning for what might happen if the court decided against the borough, Borough Mayor Charlie Pierce said the borough would wait for a ruling to make any plans.

The American Civil Liberties Union of Alaska brought the case against the borough in December 2016 after a months-long public debate over the legality of a policy the assembly adopted in October 2016 on who is qualified to give the invocation before the assembly’s regular meetings. Under the policy as it stands, only members of a religious organization with an established presence in the Kenai Peninsula Borough that meets regularly to share a religious perspective or a chaplain serving hospitals, military, fire departments or other similar organizations can give an invocation before the meetings.

The ACLU, suing on behalf of borough residents Lance Hunt, Iris Fontana and Elise Boyer, all of whom applied to give the invocation after the policy was passed and were denied, claimed that the borough’s policy violated freedom of speech rights, freedom of association, equal protection under the law and the establishment clause, which prevents governments from establishing a religion.

The attorney representing the borough, Kevin Clarkson, made the case during the April 11 hearing that the policy is not discriminatory by religious background — technically, anyone can qualify as long as they can show that they meet as part of an association, which is not defined in the borough’s policy. The point of establishing the policy was to try to make sure the person giving the invocation was legitimately there to offer an invocation rather than to make political statements, he said.

“(The borough) tried to make it broad … and find associations of people who are legitimately committed to the Kenai community,” he said.

To avoid violating the establishment clause, the borough asks the person giving the invocation not to proselytize or to denigrate other religions. Other than that, the person designated by the assembly president has free reign over what he or she says. At the same time, Clarkson made the case that because the person is selected by the assembly to deliver the invocation, he or she is acting as an agent of the government and thus the invocation becomes government speech, not private individual speech.

“The identity of the speaker is the assembly,” he said. “It’s not the individual, it’s the assembly … it certainly isn’t the individuals here defending themselves (in court).”

Superior Court Judge Andrew Peterson made the point that for some of the people in the case — specifically citing Boyer, who identifies as Jewish but is not part of a synagogue because there isn’t one in Homer — the avenue the borough has set out in the policy isn’t available. For other communities, it may be a similar story for individuals who identify as part of a religion that may not have an established organization in the area.

“Wouldn’t you agree … that the more remote you get in Alaska, the more restrictive you’re going to be, to the point where you’re down to one association?” he asked.

Eric Glatt, the attorney for the ACLU, said in his argument that the assembly’s policy was “clearly reactive” to an invocation the members didn’t like — specifically, a invocation Fontana delivered as a member of the Satanic Temple in August 2016. He said the plaintiffs do not object to the assembly allowing an invocation but rather requiring people delivering it to clear a threshold to qualify.

“It is essentially hiding (a discriminatory) effect by what appears to be a neutral policy,” he said.

Clarkson said in his response that the policy was not established as a response to the prayer itself but rather to the controversy in the community. Glatt responded that if that were the case, the borough could respond with policies every time ther e was controversy over an invocation’s content.

“If any would-be invocation giver gave an invocation that upset the community, the fact that (the community members) were upset gives (the assembly) the right to deny (the invocation giver) the right to come back to the podium,” Glatt said.

Peterson took the attorneys’ arguments under advisement as well as the motions they submitted, along with case precedents and the facts of what happened. If he rules in favor of the borough, the policy would stand; if he rules against the borough, the assembly would have to revise the policy. Either party could appeal a ruling as well.

Reach Elizabeth Earl at eearl@peninsulaclarion.com.

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