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ACLU calls Kenai Borough Assembly's religious invocation rule 'unconstitutional'

  • Author: Annie Zak
  • Updated: October 20, 2016
  • Published October 20, 2016

The American Civil Liberties Union of Alaska on Thursday called a recent decision by the Kenai Peninsula Borough Assembly to allow only religious invocations before Assembly meetings unconstitutional, asking that the body change course.

ACLU of Alaska's Executive Director Joshua Decker said in a letter to Assembly President Blaine Gilman that if the Assembly wants to have invocations before its meetings, a religious test to determine whether someone can give one "violates the constitutional guarantees of equal protection and religious freedom."

The ACLU is asking that the Assembly either ditch invocations altogether, or open them up once again to everyone regardless of religious belief or lack thereof.

"We hope that the Assembly will adopt one of these solutions by Monday, Nov. 28," Decker wrote, referring the Assembly to ACLU's staff attorney.

Gilman declined to talk about the letter.

"Now it's a legal matter, and I can't comment," he said.

Decker said no lawsuit has been filed.

"We hope we don't have to sue," he said. "But if that's what upholding the Constitution takes, we're not going to rule that out. We're confident that the Assembly is going to carefully consider the concerns we raised."

At last week's meeting, Assembly members voted 6-3 in favor of a resolution that said the person delivering an invocation has to be a representative of an Assembly-approved religious association, or a chaplain who serves a fire department, law enforcement agency, hospital or similar organization in the borough. Gilman and Dale Bagley, who represents Soldotna, sponsored the resolution.

The ACLU wasn't the only group to send a letter of objection to the Assembly. The Freedom from Religion Foundation, a national nonprofit group, also wrote to Gilman and other Assembly members Thursday, calling the rule change "discriminatory in both intent and effect."

"That discomfort you feel at having to suffer through a satanic prayer is what we atheists, agnostics and non-religious Americans feel every time our government prays to a god that we don't believe in," wrote Madeline Ziegler, a fellow at the foundation, also calling the borough's new rule unconstitutional.

"To avoid the constitutional concerns and the divisiveness these prayers cause within the community, the solution is simple: discontinue official, government prayers before government meetings," the FFRF said in its letter.

That group and the ACLU both pointed to a U.S. Supreme Court case opinion from 2014 over the issue of prayer in government meetings. In that case, Town of Greece, NY v. Galloway, the court found that a town in New York state did not violate the First Amendment by opening meetings with a prayer, but that "government may not seek to define permissible categories of religious speech."

The letters are just the latest piece of news in an ongoing conversation about invocations at the Kenai Peninsula Borough's Assembly meetings this year, after the governing body received complaints about religious prayers making some people uncomfortable.

Earlier this year, the Assembly opened up invocations to whoever wanted to read one, on a first-come, first-served basis. Before that, it was pretty much always Christian pastors who read the opening prayers.

After all of that, most members voted to keep the invocation and add the religious prerequisite.

"We hope that the Kenai Peninsula Borough Assembly will promptly fix this unconstitutional discrimination," said Decker. "Under the Constitution, it has two options: either stop invocations or go back to letting anyone offer them."