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January 28, 2013

Kimberly HowellSummerville Family YMCA205 W. Richardson Avenue, Summerville, SC 29483KimH@summervilleymca.org

Re: YMCAs Illegal Refusal to Rent a Flowertown Festival Booth to the Secular

Humanists of the Lowcountry Because of its Religious Views

Ms. Howell:

I am writing regarding the decision of the YMCA Flowertown Festival (the Festival) torefuse to allow the Secular Humanists of the Lowcountry (SHL) to rent a booth at the Festival.This was a violation of state and federal anti-discrimination laws, which forbid any place ofpublic accommodation, such as the Festival, from discriminating on the basis of the religious

views of its customers.

The Appignani Humanist Legal Center is a project of the American Humanist Association(AHA), a national nonprofit organization with over 10,000 members and 20,000 supporters

across the country, including in South Carolina. In addition to defending the separation of churchand state, the legal centers mission includes protecting the civil liberties and legal rights toequality of humanists and other atheists. SHL is one of AHAs local chapters in South Carolinaand has requested the Legal Centers assistance in correcting your illegal discrimination.

As you know, on December 10, 2012, Amy Monsky, president of SHL, called you, as theFestivals Business and Civic Coordinator, to apply for a community group booth for the Festival.Ms. Monsky had a few questions about booth space and activity restrictions and left you amessage. The next day, you returned her call. After Ms. Monsky asked her question aboutactivity restrictions, she asked you if there would be a problem with her group having a booth.She told you her group was the Secular Humanists of the Lowcountry. You indicated you were

unfamiliar with the group. Monsky then told you SHL is an atheist group. Immediatelythereafter, you told her no. According to Monsky, you were friendly until that point. Confused,Ms. Monsky asked you to clarify if you meant no, there would not be a problem, and you replied:No, it wouldnt be okay. We are a Christian organization.

The Festival advertises for vendors and community groups to lease booth space from it.Your policy applicable to non-profit vendors provides that [a]ll types of community groups,including civic organizations, non-profits, schools, artisan, crafters, commercial and faith-based

mailto:KimH@summervilleymca.orgmailto:KimH@summervilleymca.orgmailto:KimH@summervilleymca.org

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organizations are encourage to apply. However, only groups that support inclusive membershipand support community building will be considered.

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Ms. Monsky informed you that her group is both inclusive in membership and supportedcommunitybuilding.

2In response, you curtly told her SHL could apply (despite your previous

rejection showing discriminatory motive) but that their inclusion would be determined by a juryreview. Ms. Monsky then filed an application and submitted the appropriate application fee. OnJanuary 16, 2013, Monsky received a rejection letter from the Festival. It provided no reason forthe rejection. Ms. Monsky e-mailed you that day, asking, Why were we rejected? You neverreplied to her. It is quite apparent that the reason that you did not reply is that to do so would be toadmit (again) that it was because of SHLs atheist religious views, as you had clearlycommunicated in your earlier statement refusing to do business with SHL because the YMCA isa Christian organization.

The Festivals refusal to do business with an atheist organization amounts to unlawfuldiscrimination on the basis of religion in violation of Title II of the Civil Rights Act of 1964, 42U.S.C. 2000a (Title II), as well as South Carolinas public accommodations statute, S.C. Code

Ann. 45-9-10 et seq.

Both Title II and 45-9-10 provide that [a]ll persons shall be entitled to the full and equalenjoyment of the goods, services, facilities, privileges, advantages, and accommodations of anyplace of public accommodation . . .without discrimination . . . on the ground of . . . religion.

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Title II defines place of public accommodation to include any . . . place of exhibition orentertainment.

4 The Supreme Court has held that this provision of Title II must be broadlyinterpreted [i]n light of the overriding purpose of Title II to remove the daily affront andhumiliation involved in discriminatory denials of access to facilities ostensibly open to the generalpublic. Daniel v. Paul, 395 U.S. 298, 307-308 (1969). Accordingly, place of entertainment hasdefined by the federal courts to include any place of enjoyment, fun and recreation. Miller v.

Amusement Enterprises, Inc., 394 F.2d 342, 351 (5th Cir. 1968).

As you must surely know, the federal courts have already ruled that the YMCA is a placeof public accommodation within the meaning of Title II.

5Its Festival clearly is as well. The

Festival leases display booths to vendors and community groups, displays and sells arts and crafts,and provides fun activities and rides for children. The YMCA invites the public to do businesswith it by soliciting vendors and community groups to lease a Festival booth on its website and by

1 Seehttp://www.flowertownfestival.org/Vendors.html.2 SHL is a non-profit community group. More about SHL may be read on their website at

http://www.lowcountryhumanists.org/default.php?page=About.3 Atheist religious views are protected by Title II. See e.g. Welsh v. Boy Scouts of Am., 742 F. Supp. 1413, 1434(N.D. Ill. 1990) (applying Title IIs prohibition against religious discrimination to atheists).4See 42 U.S.C. 2000a(b). S.C. Code Ann. 45-9-10 (B)(4)-(6) similarly defines a place of public accommodation toinclude any retail or wholesale establishment and any . . . place of amusement, exhibition, recreation, or

entertainment.5See e.g. Smith v. YMCA, 462 F.2d 634, 648 (5thCir. 1972) (finding that YMCA is a place of entertainment underSection 2000a(b)(3).); Nesmith v. YMCA, 397 F.2d 96 (4th Cir. 1968) (finding YMCA to be a place of publicaccommodation). See also Hornick v. Noyes, 708 F.2d 321, 324 (7 th Cir. 1983) (It is clear that the YWCA is a placeofpublic accommodation for purposes of Title II.).

http://www.flowertownfestival.org/Vendors.htmlhttp://www.flowertownfestival.org/Vendors.htmlhttp://www.flowertownfestival.org/Vendors.htmlhttp://www.lowcountryhumanists.org/default.php?page=Abouthttp://www.lowcountryhumanists.org/default.php?page=Abouthttp://www.lowcountryhumanists.org/default.php?page=Abouthttp://www.flowertownfestival.org/Vendors.html

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advertising the Festival to the public, seeking their attendance.6

The Festival holds itself out to bejust such a place.

7It is also a retail establishment at which food and arts and crafts are sold to

the general public. It is a place of exhibition or entertainment covered by Title II (and SouthCarolinas statute).

Because of the public and commercial nature of the Festival, YMCA cannot refuse to dobusiness with a customer, such as SHL, on the basis of its religious views. It is clear that SHLsapplication was rejected because of the groups atheist religious beliefs.

8It is no defense that the

YMCA calls itself a Christian organization; in fact, your statement to this effect is damningevidence of religion as the motive for your decision. The public accommodations laws forbid justthis sort of discrimination.

In addition to your flagrant violation of federal law, pursuant to which SHL may bring suitto obtain an injunction to require you to stop refusing to do business with it on a discriminatorybasis, your violation of state law is a misdemeanor for which you can be fined up to $2,000 andimprisoned for up to three years. See S.C. Code Ann. 45-9-90. SHL may also bring a civilaction for damages. S.C. Code Ann. 45-9-100 to 45-9-120. Both statutes permit a prevailing

plaintiff to require you to pay its attorneys fees.

If you would like to avoid litigation, please contact me immediately and indicate that youare reversing your refusal to do business with SHL.

Sincerely,

William J. BurgessAppignani Humanist Legal CenterAmerican Humanist Association

6 As you state on your website, the Festival attracts over 200 artists from throughout the country who display their

work for sale. You state that you expect to attract over 200,000 visitors, many of whom will likely be interstatetravelers.7 The website states there will be [f]un activities and rides for children at the Childrens Jubilee.http://www.summervilleymca.org/flowertown/8 Please note that under Title II it is irrelevant whether your decision to refuse to do business with SHL was based onpersonal or organization animus to the atheist views of SHL or whether it was purely a business decision intended toavoid controversy. Courts have made clear that there is no distinction under Title II between discrimination basedupon personal animosity and that claimed to be purely economic (i.e. to avoid provoking the ire of customers whomay themselves be biased against atheists); both are illegal. See e.g. United States by Katzenbach v. Gulf-StateTheatres, Inc., 256 F. Supp. 549, 553 (N.D. Miss. 1966).

http://www.summervilleymca.org/flowertown/http://www.summervilleymca.org/flowertown/http://www.summervilleymca.org/flowertown/