In the Town of Greece, New York v. Galloway, the U.S. Supreme Court found the tradition of legislative bodies inviting local clergy to open meeting with an invocation to be constitutional, provided that minority faiths are not excluded.

The Kenai Peninsula Borough Assembly now faces a related legal debate: while the assembly has the authority to invite religious leaders to offer a prayer, do individuals have a constitutional right to give an invocation?

That’s the crux of the lawsuit filed last week by the American Civil Liberties Union of Alaska on behalf of two borough residents. The suit claims that the assembly’s recently adopted policy regarding invocations at its meetings is discriminatory because it limits those who may be invited to give an invocation to those who come from “religious associations with an established presence in the Kenai Peninsula Borough that regularly meet for the primary purpose of sharing a religious perspective, or chaplains who may serve one of more of the fire departments, law enforcement agencies, hospitals, or other similar organizations in the borough.”

The assembly’s policy — which has been adopted, repealed and adopted again — very closely follows the guidelines set out in the Greece v. Galloway ruling, with measures ensuring that any faith group that so chooses may be invited to offer an invocation. The policy expressly prohibits assembly members or borough staff from excluding any religious group, and outside of asking “that no invocation should proselytize or advance any faith, or disparage the religious faith or non-religious views of others,” the assembly is prohibited from dictating the content of invocations, or requesting to review an invocation ahead of time.

But as we noted, the challenge to the policy doesn’t involve whether an opening prayer is constitutional, but whether the invitation to give an invocation must be extended to individuals outside of established congregations — the tradition upheld by the Supreme Court.

In other words, it is not so much a matter of the freedom of speech and freedom of religion, but more a question of equal protection.

It is an interesting question, and one we would like to see answered by the court.

We do think the assembly needs a written policy on invocations if the practice is to remain a part of the assembly agenda. Frankly, the former policy of no formal policy leaves open the possibility of exclusion based on religious beliefs — clearly an issue based on recent comments from some assembly members.

And though it would seem to imply members of the local clergy, without a clear definition, the meaning of “religious association with an established presence” or what constitutes a “regular meeting” is open to interpretation. It is worth noting that IRS criteria for defining a religious association — the guidelines to be used in the event a religious association’s legitimacy is questioned — are deliberately vague for constitutional reasons. We would hope that, given the stated intent of the assembly policy, they are interpreted in the broadest sense possible — that, when in doubt, the clerk and assembly president look for reasons to include those wishing to give an invocation, rather than reasons to exclude.

Should the borough assembly opt to amend the portion of the policy over which the suit has been filed, we hope it will be done so without throwing out the rest of the policy.

But should the assembly go forward with defending the policy, we look forward to hearing the legal arguments on both sides of the issue. Some have argued that the cost of defending the policy is not worth it, but just as the ACLU has become involved, there are likely organizations that would assist the borough in its defense. As much as the policy is an attempt to remove politics from the assembly’s invocation, it has certainly stirred the political pot.