Assembly invocation policy gets day in court

Apr 13, 2018

Credit Kenai Peninsula Borough Assembly

After more than a year of legal wrangling, the borough’s invocation policy was center stage for oral arguments in Alaska Superior Court Wednesday. KDLL’s Shaylon Cochran spoke with Peninsula Clarion reporter Elizabeth Earl, who was in court Wednesday to hear the arguments.

 

Shaylon Cochran: As a refresher, what are the two basic sides being argued here? There are some first amendment questions regarding the borough’s invocation policy and some free speech questions sort of more broadly.

 

Elizabeth Earl: A lot of it is the same stuff the parties have been saying all along which is a fundamental disagreement in the nature of the invocation being given. Every (assembly) meeting opens with a prayer and it’s typically given by a member of the public from a local church or a religious association and sometimes it’s been given by assembly members. But one of the arguments that the borough is making is that because that person is designated by the borough assembly president, it does not constitute individual speech. It constitutes government speech because it’s performed by an agency of the government. And so therefore, it does not fall under the category of protected speech the same as individual freedom of speech. It’s a different type of protection because the government has the right to choose its message.

The ACLU on the other side, is making the argument that the policy effectively blocks people who aren’t part of established religious associations. The lawyer for the ACLU made the point that the plaintiff, who’s from Homer and identifies as Jewish, would be part of a synagogue if there was one, but there is not. And there are not enough Jewish people in Homer, apparently, to establish a synagogue and there’s not a rabbi, and so she would not have a chance to be part of a religious association with which she would be comfortable identifying and thus does not have the opportunity to give the invocation. The ACLU calls it a religious test, the borough calls it a policy. But what it boils down to, is it’s a fundamental disagreement in the type of speech that the invocation qualifies as.

SC: One of the things I found interesting in reading some of the briefs and what the two sides were trying to argue in this case, both sides pointed to the same case to prove their point; a federal case that went through the wringer a few years back. Did that come up?

EE: There were a number of cases that got cited; one in Nebraska, one that was recently decided in Florida. This invocation issue comes up a fair amount in court and so there was actually a fair amount of citations of different cases that came up. But Town of Greece versus Galloway did get involved. There was also a disagreement at that level as to what exactly that case meant. The lawyers were interpreting different pieces of that, but the judge is going to have all of that in front of him and be able to interpret it based on those precedents as well as the lawyers arguments.

SC: What happens next? Where do we go from here?

EE: The court could decide entirely that the policy doesn’t hold and make the assembly throw the entire thing out and then the assembly will have to start over. But they can’t go back to what they had before, because the assembly had an informal policy. They can’t just revoke a law and then leave nothing in its place, so they’re going to have to replace it with something if the court decides it doesn’t stand constitutionally. The court could also find that part of it doesn’t stand, or they’ll make an argument that there’s a piece of it that needs to be adjusted or changed, in which case the assembly would still have to go back and revise it. And then there’s also the possibility that the court could find that’s it’s completely constitutional and it stands. It’s hard to say exactly what the judge will find.