Superior court judge rules against Kenai Peninsula Borough in invocation case

Oct 9, 2018

Credit Kenai Peninsula Borough Assembly

After a roughly two-year court battle, a state superior court judge ruled Tuesday that the Kenai Peninsula Borough’s invocation policy is unconstitutional. However, this may not be the end of the road for the case. The Kenai Peninsula Borough Assembly still needs to decide whether to appeal Tuesday’s ruling.  

The court’s decision found that the borough assembly’s 2016 rewrite of its invocation policy took a step toward establishing an official religion by excluding “minority faiths,” therefore violating the state Constitution’s Establishment Clause.  

The ruling is a big win for the American Civil Liberties Union of Alaska. The ACLU sued the borough over the policy in late 2016. It argued the policy violated some borough residents’ right to freedom of speech after they were prohibited from giving an invocation.

“We’re very grateful that the judge saw the case the same way we did, which was that this policy was a policy born of intolerance,” ACLU spokesperson Casey Reynolds said.

The policy restricted invocations to leaders of recognized congregations that hold regular meetings in the borough. The assembly implemented the policy following an invocation led by Iris Fontana, one of three plaintiffs in the case. Fontana’s prayer ended in the words “hail Satan.”

Assembly member Willy Dunne is also pleased with the ruling. The borough’s policy has precluded several of Dunne’s constituents from leading a prayer before assembly meetings.  

“I believe that our policy is discriminatory and prevents some people from giving invocations while allowing other people to give them,” Dunne said Tuesday. “I’m happy to see the situation is temporarily settled. We’ll see where we go from here.”

The decision whether to appeal the case will ultimately be up to the assembly.

There have been several attempts to change the borough’s current policy. The most recent push came in early 2017, but failed in a 6-3 vote. However, two new members have since been elected to the assembly, possibly changing its view on the matter.

In the meantime, the policy will need to be changed. Borough Mayor Charlie Pierce said he was ready to work with the legal department to draft new language during Tuesday’s assembly meeting.

“We will have to make some modifications to the existing policy or practices that are being followed,” Pierce told assembly members. “We will follow the directives of the court in the interim, and again, you’ll have an opportunity to decide whether you choose to appeal the ruling or not.”

It’s unclear when the assembly may revisit the current policy, though it will likely be soon.

It’s also unknown when assembly members will discuss whether they want to appeal Tuesday’s ruling. The ACLU says if the borough does move to appeal the decision, it will continue to fight the case.

The assembly’s next meeting is on Oct. 23.

Editor's Note: This story has been updated to reflect comments from Kenai Peninsula Borough Assembly member Willy Dunne, borough mayor Charlie Pierce and the ACLU. 

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