Downtown Soup Kitchen v. Municipality of Anchorage

• Decision Date: 20 December 2021
• Docket Number: Case No. 3:21-cv-00155-SLG
• Citation: 576 F.Supp.3d 636
• Parties: The DOWNTOWN SOUP KITCHEN d/b/a Downtown Hope Center, Plaintiff, v. MUNICIPALITY OF ANCHORAGE, Anchorage Equal Rights Commission, and Mitzi Bolaños Anderson, in her Official Capacity as the Executive Director of the Anchorage Equal Rights Commission, Defendants.
• Court: U.S. District Court — District of Alaska

576 F.Supp.3d 636

The DOWNTOWN SOUP KITCHEN d/b/a Downtown Hope Center, Plaintiff,

v.MUNICIPALITY OF ANCHORAGE, Anchorage Equal Rights Commission, and Mitzi Bolaños Anderson, in her Official Capacity as the Executive Director of the Anchorage Equal Rights Commission, Defendants.

Case No. 3:21-cv-00155-SLG

United States District Court, D. Alaska.

Signed December 20, 2021

David Andrew Cortman, Alliance Defending Freedom, Lawrenceville, GA, Jeremiah J. Galus, Pro Hac Vice, Katherine L. Anderson, Pro Hac Vice, Ryan Jeffrey Tucker, Pro Hac Vice, Alliance Defending Freedom, Scottsdale, AZ, Sonja Kathleen Redmond, Law Office of Sonja Redmond, Soldotna, AK, for Plaintiff.

Meagan Rae Carmichael, Ruth Botstein, Municipal Attorney's Office, Anchorage, AK, for Defendants.

ORDER RE DEFENDANTS’ MOTION TO DISMISS FOR LACK OF STANDING

Sharon L. Gleason, UNITED STATES DISTRICT JUDGE

Before the Court at Docket 28 is Defendants’ 12(b)(1) Motion to Dismiss for Lack of Standing filed by the Municipality of Anchorage, the Anchorage Equal Rights Commission, and Mitzi Bolaños Anderson (collectively, "the Municipality"). Plaintiff the Downtown Soup Kitchen d/b/a Downtown Hope Center ("Hope Center") responded in opposition at Docket 34, and the Municipality replied at Docket 40. Oral argument on a separate motion—Plaintiff's Motion for Preliminary Injunction at Docket 15—was held on September 14, 2021.¹

BACKGROUND

I. Hope Center

Hope Center is a non-profit religious organization located in Anchorage, Alaska that provides meals, showers, laundry services, clothing, job training, and religious ministry to homeless individuals, as well as an overnight shelter for homeless women.² The shelter can accommodate up to fifty women per night.³ Due to limited space, the women must all sleep three to five feet apart on the floor of one large room, where they may change clothes or be in various states of undress.⁴ Many of the women who stay at Hope Center's shelter have experienced rape, sex trafficking, physical abuse, and domestic violence, "primarily at the hands of men."⁵

Hope Center maintains that its religious beliefs compel it to care for Anchorage's homeless and to "cherish, respect, and protect women."⁶ It also believes that "God creates people male or female," that "[a] person's sex (male or female) is an immutable God-given gift," and that "[i]t is wrong for a person to deny his or her God-given sex."⁷ In keeping with these beliefs, Hope Center allows "only biological women to stay overnight at the shelter."⁸ Hope Center previously posted an admissions policy on its website and at its premises stating that "guests of the shelter must be biological females" and that "[it] is against [shelter] policy for biological males to spend the night."⁹ It states that it has since removed these postings due to fear of prosecution under the Municipality's nondiscrimination laws.¹⁰

Hope Center's operational policies explain that "[b]ecause of limited resources and limited space and because of its mission to serve and empower those most in need, the Center cannot accept everyone, a large portion of the public, or even a large portion of those in need of transient overnight housing."¹¹ Accordingly, shelter guests must meet detailed admissions criteria, and certain categories of potential shelter guests receive priority when space is limited.¹² To qualify for admission, shelter guests must be homeless, at imminent risk of homelessness, or fleeing domestic violence; be 18 years of age or older; avoid "demonstrat[ing] behavior dangerous to staff, guests, or themselves"; be able to "function in the shelter environment without serious disruption"; be "clean and sober"; be "biological females, meaning they were born with, and currently have, only anatomical and genetic characteristics of a woman"; adhere to shelter policies; be willing to "be exposed to Christian teachings and not disrupt meetings inculcating Christian values"; follow the shelter schedule; perform chores; and meet medical, functional limitation, and hygiene requirements.¹³ Potential guests must agree in writing to follow these policies and must receive advance approval from Hope Center staff before they can access the shelter. ¹⁴

Hope Center staff have "sole discretion" to determine whether an applicant meets the admissions criteria and may look to factors including their personal observations, interviews with the applicant, reports from other shelter guests, medical tests, and government records.¹⁵

II. Prior Litigation

Title 5 of the Anchorage Municipal Code ("AMC"), entitled "Equal Rights," is intended to "guarantee fair and equal treatment under law to all people of the municipality, consistent with federal and state constitutional freedoms and laws, including freedom of expression, freedom of association and the free exercise of religion."¹⁶ Chapter 5.20 of the title includes prohibitions on discriminatory practices "in the sale, rental, or use of real property" (section 5.20.020) and "in places of public accommodation" (section 5.20.050). The Municipality has charged the Anchorage Equal Rights Commission ("AERC") with administering and enforcing Title 5.¹⁷ Any person who believes they have been discriminated against in violation of Title 5 may file a complaint with the AERC, and the Commission's Executive Director also has the power to file a complaint on behalf of others, subject to the approval of a panel of three Commissioners.¹⁸

In 2018, "Jessie Doe," a transgender woman, filed a complaint with the AERC alleging that Hope Center had denied her admission to its homeless shelter based on her sex and gender identity in violation of Title 5's public accommodations provision, section 5.20.050.¹⁹ Doe had been dropped off at Hope Center by the Anchorage police on a Friday evening and "smelled of alcohol, had an open eye wound, and seemed agitated and aggressive."²⁰ Sherrie Laurie, Hope Center's Executive Director, denied Doe admission to the shelter because Doe was inebriated, which violated Hope Center's admissions criteria.²¹ Doe tried to access the shelter the following day but was again denied entry because Hope Center was not accepting new shelter guests at the time and does not allow Saturday admission unless the guest has stayed at the shelter the previous evening.²² The AERC and its then–Executive Director "aggressively litigated" Doe's claim, refusing to dismiss the claim and even filing a second action against Hope Center and its then–legal counsel based on that attorney's statements in the media regarding the shelter's admissions policy.²³

In response, Hope Center filed a complaint against the Municipality in this Court, seeking declaratory and injunctive relief from enforcement of sections 5.20.020 and 5.20.050.²⁴ The Court granted a preliminary injunction in August 2019, holding that Hope Center was likely to succeed on the merits of its claims because neither of the Municipal Code provisions applied to homeless shelters.²⁵ The Court held that section 5.20.020, the real property provision, did not apply to Hope Center because that section, as it was then drafted, expressly incorporated by reference a homeless-shelter exemption contained in AMC chapter 5.25.²⁶ The Court further reasoned that section 5.20.050 should not be interpreted to include homeless shelters as "public accommodations" because doing so would render meaningless the homeless-shelter exemption incorporated into section 5.20.020.²⁷ Because the Court found that both of the AMC sections did not apply to Hope Center, it did not reach Hope Center's constitutional arguments.²⁸ Shortly after, the parties resolved the litigation with a consent decree in which the Municipality agreed to cease its enforcement actions and pay Hope Center $1.00 in nominal damages and $100,000 in attorney's fees and costs.²⁹

III. Title 5 Revisions

The Anchorage Assembly began revising Title 5 in 2019 and completed the process on May 25, 2021 by enacting ordinance AO2021-30.³⁰ The ordinance was designed in part to "address legal issues raised by the Downtown Soup Kitchen litigation, which resulted in a $100,001 settlement paid by the Municipality."³¹ Assembly members frequently referenced Hope Center and the prior litigation at the May 25 meeting, during which the Assembly discussed the proposed ordinance and amendments to it, heard testimony from members of the public, and questioned the AERC's Executive Director, Mitzi Bolaños Anderson, about the legal effects of changes made by the ordinance.³² Ms. Laurie, Hope Center's Executive Director, was among those who testified.³³ Ultimately, the Assembly enacted an amended version of the ordinance with a 7–2 vote.³⁴

Many of the changes made by the ordinance were procedural. The Assembly overhauled the AERC's conciliation, litigation, and hearing procedures, as well as increased the Commission's oversight of the Executive Director.³⁵ The ordinance made substantive changes as well; the three most relevant changes are detailed below.

First , the ordinance repealed chapter 5.25 of the old code, entitled "Fair Housing Act," in its entirety.³⁶ The Municipality explains that this chapter was not used by the AERC because it had been adopted pursuant to a planned workshare agreement with the U.S. Department of Housing and Urban Development that never materialized.³⁷ The homeless-shelter exemption that informed this Court's decision in the 2018 litigation was contained in chapter 5.25 and thus was repealed as a result of the chapter's removal.³⁸

Second , the ordinance updated the code's definition of "public accommodation" in AMC section 5.20.010, impacting the reach of section 5.20.050. The former section 5.20.010 defined "public accommodation" as "any business or professional activity that is open to, accepts or solicits the patronage of, or caters or offers goods or services to the general public, subject only to the conditions and limitation established by law and applicable alike to all persons."³⁹ As...