Advocacy Cannot Be The Offense

One of the problems with “faith-based” charities is that they’re faith based, as demonstrated by the Anchorage Equal Rights Commission’s rulings that the Downtown Hope Center, which provides shelter for homeless and battered women, engaged in discrimination.

According to commission records, Samantha Amanda Coyle, age 52 as per Coyle’s legal records identifying Coyle as Timothy Paul Coyle, filed a “public accommodation” discrimination complaint on Feb. 1 against the Downtown Hope Center located at 240 E. 3rd Ave regarding Coyle’s unsuccessful attempts to access the facility on Jan. 28 at night and on Jan. 29 prior to 5:45 p.m. when the shelter opens for admission.

Coyle’s complaint charges that Coyle was discriminated against based on “sex” and “gender identity” as per the Anchorage Municipal Code Section 5.20.050. Coyle states, “I am female and transgender and thus I belong to a protected class,” on the official complaint.

The response was Coyle was drunk.

Shelter representatives defend denying Coyle access because they “believed him to be inebriated based on the strong smell of alcohol on his person,” according to Clarkson of Brena, Bell & Clarkson based in Anchorage.

Coyle came to the Downtown Hope Center shelter after being turned away from Brother Francis, according to Clarkson. Other media reports indicate Brother Francis representatives told Coyle to leave on Jan. 28 due to inebriation and fighting – two activities that shelter has a zero tolerance policy regarding.

While inebriation and fighting are justifiable, the AERC concluded that the real reason Coyle was denied access was that he was a biological male.

However, as a religious organization, they do not house biological men in its abused women’s shelter because doing so would traumatize abused and battered women.

Under other circumstances, this might seem to be abundantly reasonable on its surface, and given the faith-based nature of the shelter, entirely consistent with their sincerely held beliefs. Or more to the point, if a religious charity chooses to provide shelter, which it is under no legal obligation to do, it would be absurd to require it to do so in a manner inconsistent with its faith.

The shelter was represented before the Commission by Kevin Clarkson. Simultaneously, there was a proposition pending in Alaska, Prop 1, relating to access to bathrooms and locker rooms based upon a person’s designated sex at birth. The proposition has since failed. The issues raised by the DHC case and Prop 1 were intertwined, and Clarkson spoke to them during the pendancy of the matters as Downtown Hope Center’s lawyer.

The Alaska Equal Rights Commission apparently didn’t think well of what Clarkson had to say in defense of his client publicly.

It was in the context of that incident that Clarkson made comments to local news media regarding the case. And that’s why he’s now facing charges.

It’s unclear whether any action has been taken, as yet, against Clarkson, or merely threatened, though threats alone are sufficient to chill speech and zealous advocacy. It appears that the public statements deemed offensive were quotes from legal submissions on behalf of DHC.

“It’s the most outrageous case I’ve ever seen,” First Liberty’s Hiram Sasser told the Todd Starnes Radio Show. “Because he wrote a brief to the commission defending the shelter and portions of that brief were quoted in the media – he is accused of being in violation of their provision that prohibits you from talking about a policy.”

Hyperbole aside, the First Amendment implications of being accused of violating non-discrimination law by having your defense publicly uttered are clear and overwhelming. Beyond the First Amendment, there’s the chilling effect on right to counsel, as the lawyer may now be at risk for the public utterance of his argument on behalf of his client.

The underlying claim is bad enough, that the direct conflict between faith, sex and gender should be subject to a value choice by a governmental entity. Would it be better if Downtown Hope Center closed its doors and no longer provided shelter? Would it be better for battered women that there be no place to turn because they refused to allow biological males to share space with traumatized women?

While we are at a stage in society where religious belief is disfavored, often ridiculed, the free exercise of one’s religion remains a right protected by the First Amendment. This is not a subterfuge for non-religious animus, but simply a faith-based view. And it comes from a shelter seeking to do good work within the framework of its religious beliefs. Nonetheless, elevation of the rights of transgender people, as more vulnerable and more worthy of protection than religious beliefs or the protection of battered women, gives rise to this untenable conflict of rights.

But placing the shelter’s lawyer in the line of fire for his advocacy on behalf of his client creates a scenario that impacts the ability to argue the cause. Granted, this is about public extra-judicial statements, the use of his arguments on behalf of the Downtown Hope Center to explain to the public his position on an issue of significant public importance, but that too is part of advocacy. More to the point, if legal arguments exposed to sunshine can place a lawyer in jeopardy, the chilling effect on taking cases, on zealously arguing the client’s cause, will certainly have a negative impact on the right to representation.

You don’t have to agree with Clarkson’s arguments, with Downtown Hope Center’s faith-based policies or the fundamental right of free exercise of religion coming ahead of the more fashionable right of gender identity, but if there is no ability to zealously argue the case without fear of accusation, then the outcome is a foregone conclusion. That’s intolerable.

H/T Lee Keller King

20 thoughts on “Advocacy Cannot Be The Offense

  1. Jake

    I’d like to file suit against The Motion Picture and Television Fund retirement community for not accepting my petition to retire there just because I’m not part of their little clique. Will you represent me?

    1. SHG Post author

      I bet there’s a pointed, yet funny, message in your comment, but for the life of me, I have no fucking clue what it is.

          1. Jake

            I can write grammatically correct, contextually relevant words demonstrating my ideological alignment with the church’s argument, I can’t force you to comprehend them.

            PS- You’re missing an apostrophe on the word ‘shelter’s’ in the first sentence of the penultimate paragraph.

            1. SHG Post author

              And this is where you fail to convey a message, even though you’re certain that you’ve done so competently, and turn my comments into all about Jake. Well, this was fun, but as fascinating as you are to everyone else, we return to our regularly scheduled show.

  2. D-Poll

    The good news is that I’m sure all five lawyers in Alaska will work together to fight this.

    1. SHG Post author

      I did a couple cases in Anchorage. They had two federal courtrooms, but only one (visiting) judge. Still, no waiting. In fairness, they are probably up to seven or eight lawyers by now.

  3. Lee Keller King

    You people miss the point! The firm of Brena, Bell & Clarkson is an extremist, hate organization that supports Anti-LGBT legislation and Mr. Clarkson is obviously a fanatic, having donated “over 10,000 pro bono hours” to the “anti-LGBT hate group Alliance Defending Freedom (ADF).”

    Or at least, that appears to be the stance of the Southern Poverty Law Center. Clearly, the SPLC believes that Mr. Clarkson is a BAD person because he represents BAD causes.

    Seriously, from what I’ve been able to determine, any statements made by Mr. Clarkson would most likely have been covered by the litigation privilege in Texas and therefore not actionable. But of course, that wouldn’t stop the Austin Equal Rights Commission from filing charges. (Did I say Austin??? I meant Anchorage).


    1. B. McLeod

      It is a sign that the AERC would like to be defendants in a Section 1983 federal civil rights lawsuit. I hope he accommodates them

  4. B. McLeod

    There has always been a gender discrimination issue with these “battered women shelters,” many of which depend on federal CDBG entitlement funds allocated by local governments. That issue is and has been there since the very first day, but until you throw in the transgender angle, “progressives” can’t see it. Suddenly, they do. That males have always been unserved by these shelters was of no consequence, but now, a male-to-female transperson has been disrespected, so raise the hue and cry (of course they still won’t support admission of ordinary males, no matter how battered or fried).

  5. Christopher Dove

    I don’t know whether to be disturbed or relieved that society in general has finally seen fit to apply the sort of lawyer/client conflation normally reserved for CDLs and only CDLs (“How can you defend those people?”) to the larger legal society. (This is where I’d put in an eye roll emoji, but that’d be too millennial for my greying, sagging Gen X ass.)

    1. SHG Post author

      The first thing we do is get rid of the lawyers. As it turns out, there are many ways to accomplish this, and they’re increasing daily.

      1. B. McLeod

        I don’t see this particular one working well in the long term. It is simply too glaringly over the line as a first amendment matter (recognizing that such won’t impress the AERC, but the courts will have no room to do anything but pitch it).

          1. B. McLeod

            This is why people subjected to brazenly intentional trampling of their first amendment rights need to come back with the Section 1983 suit after, so they can get paid for their trouble, plus attorney’s fees. (Also so the AERC and their ilk can learn about the down side of intentionally violating citizens’ civil rights with unconstitutional measures).

  6. Bryan Burroughs

    I hope the AERC is ready to have whatever law they are citing overturned. If it seriously allows charging someone with a crime for speaking to the news on a public policy issue, no less a lawyer speaking about the details of a case he is currently arguing, there’s no possible way it could hold up. I’m a computer programmer, and I could probably win that case.

    I really hope the ordinance in question also allowed for the creation of the AERC, that way it will be dissolved when the case is inevitably ruled in favour of Clarkson.

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