Judge rules Kenai Peninsula Borough’s invocation rule is unconstitutional and ‘stemmed from intolerance’

The Kenai Peninsula Borough’s controversial policy that put restrictions on which religious groups could give invocations at its meetings has been, unsurprisingly, struck down by the Alaska Superior Court on grounds that it violates the state’s constitution.

Superior Court Judge Andrew Peterson struck down the ordinance in a summary judgment opinion released on Tuesday, finding the rule violated the Alaska Constitution’s establishment clause. The 2016 ordinance limited who could give invocations to members of religious groups with an “established presence” in the borough.

“The establishment clause does not only prohibit the establishment of a state religion, it prohibits laws that act as a step towards the establishment of a state religion,” Peterson wrote.

Freedom of Religion

No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.

The lawsuit, brought by three Kenai residents and backed by the ACLU of Alaska, challenged the resolution. One of the plaintiffs is Jewish and because there’s no Jewish temple in the borough is barred from giving an invocation before the assembly’s meetings.

The Kenai Peninsula Borough Assembly has struggled with invocations since 2016, when the assembly changed its long-standing policy from collecting volunteers to give invocations to a first come, first served policy. That policy resulted in an invocation by plaintiff Iris Fontana prepared by the Satanic Temple on Aug. 9, 2016 that ended with “Hail Satan.”

As a result, offended assembly members sought to prevent such a thing from ever happening again by passing a resolution that sets strict limits on which religions can participate in the invocations.

“… All 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 or more of the fire departments, law enforcement agencies, hospitals or other similar organizations in the borough, are eligible to provide invocations to the assembly… “KPB Resolution 2016-056

Superior Court Judge Andrew Peterson summarized the law as only allowing chaplains or people from faiths with an established presence in the borough.

“Individuals that do not fall into either eligible category are denied the opportunity to give the opening invocation,” he wrote. “The resolution is inclusive of tax-exempt religious associations serving residents of the borough. It is not inclusive of every religious view or belief practiced by the residents of the Kenai Peninsula Borough.”

Peterson also reviewed the history and case law surrounding legislative invocations, noting that they’ve been upheld as a core part of the fabric of communities with “the idea that people of many faiths may be united in a community of tolerance and devotion.”

He recognized the intent of the borough’s resolution was to be purposefully exclusionary.

“History and tradition support an inclusive invocation policy. Not one that is inclusive of ‘diverse religious association,’ but rather one that is inclusive of every faith. The resolution at issue here excludes minority faiths from participating in the invocation practice,” he wrote. “KPB has made clear that the resolution stemmed from intolerance for the controversial views expressed during two particular invocations.”

The case can be appealed to the Alaska Supreme Court, but for now the plaintiffs and the ACLU of Alaska are celebrating victory.

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