Hunt v. Kenai Peninsula Borough: the Search for Clarity in Legislative Prayer Speaker Selection

• Publication year: 2019

§ 36 Alaska L. Rev. 119. HUNT V. KENAI PENINSULA BOROUGH: THE SEARCH FOR CLARITY IN LEGISLATIVE PRAYER SPEAKER SELECTION

Alaska Law Review
Volume 36, No. 1, June 2019
Cited: 36 Alaska L. Rev. 119

HUNT V. KENAI PENINSULA BOROUGH: THE SEARCH FOR CLARITY IN LEGISLATIVE PRAYER SPEAKER SELECTION

Charles Truslow & Craig Jones ^[*]

ABSTRACT

In 2016, three residents of the Kenai Peninsula Borough were prevented from delivering an invocation at a Borough Assembly meeting because they were neither borough chaplains nor members of a qualifying religious association. These three residents sued the borough, claiming that the Borough Assembly's speaker selection policy violated the Alaska Constitution's Establishment Clause. The superior court ruled for the plaintiffs, holding that the selection policy constituted a step towards the establishment of a state religion. Applying Supreme Court precedent, the superior court reached the correct result. However, the limited amount of federal precedent on the principles guiding speaker selection policies has led to significant variance of application in different jurisdictions. Important questions remain regarding the scope of legislative prayer doctrine in Alaska, which still need to be addressed.

I. INTRODUCTION

In 2016, the Kenai Peninsula Borough Assembly (the Assembly) instituted a policy partially restricting who could deliver the Assembly's invocation. ^[1] Three plaintiffs who were prevented from delivering an invocation sued, arguing that the policy violated Alaska's religious establishment clause. ^[2] The superior court ruled for the plaintiffs, finding the Assembly's policy "stemmed from intolerance for the controversial views expressed during two particular invocations." ^[3] Interpreting Bonjour v. Bonjour, ^[4] and subsequent Supreme Court cases, the superior court concluded that Alaska's Establishment Clause need not be interpreted more broadly than the federal Establishment Clause. ^[5] Therefore, the court applied the only two cases the Supreme Court has decided on the issue of legislative prayer: ^[6] Marsh v. Chambers ^[7] and Town of Greece v. Galloway. ^[8] The Hunt court was largely successful in doing so but failed to fully clarify important points regarding religious affiliation, the scope of discrimination, and first amendment principles.

This Comment provides a brief survey of notable interpretative approaches to Marsh and Greece in order to critique the approach in Hunt. Part II describes the important facts and holdings of the Hunt case. Part III discusses the legal background of Marsh, Greece, and other important legislative prayer cases. Finally, Part IV contrasts the approach in Hunt to that of other legislative prayer cases discussed in Part III. We conclude by reiterating the importance of further clarification on the issue of legislative prayer in Alaska.

II. HUNT V. KENAI BOROUGH PENINSULA

In 2016, the Assembly adopted a "first come, first served" practice, in order to expand the pool of invocation speakers. ^[9] This resulted in two controversial invocations, one of which ended with the phrase "Hail Satan," which in turn created further complaints. ^[10]

To address the complaints, the Assembly introduced a speaker selection policy which became the subject of the Hunt case: ^[11]

To ensure that [] (the "invocation speaker") is selected from among a wide pool of representatives . . . :

The Clerk shall post a notice on the borough internet home page that 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 of [sic] more of the fire departments, law enforcement agencies, hospitals, or other similar organizations in the borough, are eligible to provide invocations to the assembly, and that the authorized leader of any such association or chaplain can submit a written request to provide an invocation to the borough clerk. ^[12]

After the adoption of the resolution, three borough residents sought to provide an invocation, but their requests were rejected as they were not members of a qualifying religious association or borough chaplains. ^[13] Lance Hunt was an atheist, Iris Fontana was a twenty-seven year old Kenai Peninsula College student and member of the Satanic Temple, ^[14] and Elise Boyer was Jewish. ^[15]

In response to their rejection, the three sued the Assembly, alleging, amongst other claims, that the Assembly's policy violated the Alaska Constitution's establishment clause. ^[16] Alaska's establishment clause provides that "[n]o law shall be made respecting an establishment of religion." ^[17] Noting that the Alaska Supreme Court has not addressed the issue of legislative prayer under Alaska's establishment clause, the superior court relied exclusively on federal law and limited its inquiry to the narrow issue of whether the requirements in the Assembly's policy constitute an impermissible establishment of religion. ^[18]

The court explained that the establishment clause "not only prohibit[s] the establishment of a state religion, it prohibits laws that act as a step towards the establishment of a state religion." ^[19] The Hunt court determined that the Assembly's policy "excludes minority faiths from participating in the invocation practice." ^[20] The court further reasoned that "[t]he goal behind legislative invocations . . . is the idea that people of many faiths may be united in a community of tolerance and devotion." ^[21] The court found the Assembly's policy was contrary to this goal, as it stemmed from intolerance of certain controversial views. ^[22]

Finally, the court impliedly provided a rule outlining what future behavior assemblies may engage in. The court stated that after "opening the invocation opportunity to all residents, [the assembly] cannot then put in place requirements that in effect exclude minority faiths or beliefs." ^[23] The court stated that the Assembly "has made clear that the resolution stemmed from intolerance for the controversial views expressed during two particular invocations." ^[24] Furthermore, the court held that the establishment clause only allows the prevention of an invocation speaker "where [the speaker has] exploited the invocation opportunity to proselytize, advance, or disparage any faith or belief." ^[25]

Ruling for the Plaintiffs, the court concluded that the invocation policy adopted by the Assembly was not inclusive enough under Greece, where "no faith was excluded by law, nor any favored." ^[26]

III. LEGISLATIVE PRAYER IN ALASKA : MARSH GREECE AND THEIR PROGENY

A. Alaska's Legislative Prayer Tradition

Legislative prayer has been a routine practice of Alaskan legislatures since the first session of the Alaska Constitutional Convention which opened with an invocation by Reverend Roy Ahmogak. ^[27] He prayed, "[e]nlighten [the delegates] with wisdom from above and especially in establishing our Constitution." ^[28] Today, both houses of the Alaska Legislature open their sessions with prayer. ^[29] However, local practices differ across the state, ^[30] and these practices have occasionally prompted controversy. An invocation was officially adopted as a standing item on the Fairbanks North Star Borough Assembly agenda in 2001. ^[31] Before that, invocations were traditionally offered, but not officially a part of the agenda. ^[32] In 2017, a proposal to remove the invocation from the Assembly's agenda failed by one vote after hours of testimony and debate over the role of religion in civic life and the freedom of individuals to express their religion publicly. ^[33] It is worth bearing in mind that while legislative prayer has a long history in Alaska, it has prompted discord at times.

B. Supreme Court Jurisprudence: Legislative Prayer & the Establishment Clause

The Supreme Court has addressed the issue of legislative prayer twice. First, in Marsh, the court held Nebraska's legislative prayer practice to be constitutional. ^[34] Nebraska's legislature opened their sessions with a prayer by a state employed chaplain, chosen with legislative approval. ^[35] Chief Justice Burger observed that over time "the practice of opening legislative sessions with prayer has become a part of the fabric of our society." ^[36] Thirty years later, the court tackled the question of prayer at local government meetings in Greece, finding that the town of Greece's practice of opening its council meetings with invocations by local clergy was consistent with the Establishment Clause. ^[37] Marsh and Greece have collectively established that sectarian legislative prayer is constitutional at all levels of government. However, these cases leave important practical matters unresolved.

One key open question is: who is required to have the opportunity to deliver an invocation? The issue of speaker selection took a backseat in both Marsh and Greece to other pressing issues like whether legislative prayer is constitutional at all and whether it is required to be nonsectarian. The Nebraska Legislature employed the same Presbyterian minister to deliver invocations for sixteen years. ^[38] In Marsh, the Court accepted this practice because in their estimation, the chaplain's long tenure reflected his "performance and personal qualities" rather than "an impermissible motive." ^[39] While that phrase is not defined specifically, the Court suggested that the...