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January 28, 2013 Kimberly Howell Summerville Family YMCA 205 W. Richardson Avenue, Summerville, SC 29483 KimH@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) to refuse 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 of public 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 church and state, the legal centers mission includes protecting the civil liberties and legal rights to equality of humanists and other atheists. SHL is one of AHAs local chapters in South Carolina and 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 the Festivals 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 a message. The next day, you returned her call. After Ms. Monsky asked her question about activity 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. Immediately thereafter, 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

organizations are encourage to apply. However, only groups that support inclusive membership and support community building will be considered.1 Ms. Monsky informed you that her group is both inclusive in membership and supported community building.2 In response, you curtly told her SHL could apply (despite your previous rejection showing discriminatory motive) but that their inclusion would be determined by a jury review. Ms. Monsky then filed an application and submitted the appropriate application fee. On January 16, 2013, Monsky received a rejection letter from the Festival. It provided no reason for the rejection. Ms. Monsky e-mailed you that day, asking, Why were we rejected? You never replied to her. It is quite apparent that the reason that you did not reply is that to do so would be to admit (again) that it was because of SHLs atheist religious views, as you had clearly communicated in your earlier statement refusing to do business with SHL because the YMCA is a Christian organization. The Festivals refusal to do business with an atheist organization amounts to unlawful discrimination on the basis of religion in violation of Title II of the Civil Rights Act of 1964, 42 U.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 equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . .without discrimination . . . on the ground of . . . religion.3 Title II defines place of public accommodation to include any . . . place of exhibition or entertainment.4 The Supreme Court has held that this provision of Title II must be broadly interpreted [i]n light of the overriding purpose of Title II to remove the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public. Daniel v. Paul, 395 U.S. 298, 307-308 (1969). Accordingly, place of entertainment has defined 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 place of public accommodation within the meaning of Title II.5 Its 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 business with it by soliciting vendors and community groups to lease a Festival booth on its website and by

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See http://www.flowertownfestival.org/Vendors.html. 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). 4 See 42 U.S.C. 2000a(b). S.C. Code Ann. 45-9-10 (B)(4)-(6) similarly defines a place of public accommodation to include any retail or wholesale establishment and any . . . place of amusement, exhibition, recreation, or entertainment. 5 See e.g. Smith v. YMCA, 462 F.2d 634, 648 (5th Cir. 1972) (finding that YMCA is a place of entertainment under Section 2000a(b)(3).); Nesmith v. YMCA, 397 F.2d 96 (4th Cir. 1968) (finding YMCA to be a place of public accommodation). See also Hornick v. Noyes, 708 F.2d 321, 324 (7th Cir. 1983) (It is clear that the YWCA is a place of public accommodation for purposes of Title II.).

advertising the Festival to the public, seeking their attendance. 6 The Festival holds itself out to be just such a place.7 It 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 South Carolinas statute). Because of the public and commercial nature of the Festival, YMCA cannot refuse to do business with a customer, such as SHL, on the basis of its religious views. It is clear that SHLs application was rejected because of the groups atheist religious beliefs.8 It is no defense that the YMCA calls itself a Christian organization; in fact, your statement to this effect is damning evidence of religion as the motive for your decision. The public accommodations laws forbid just this sort of discrimination. In addition to your flagrant violation of federal law, pursuant to which SHL may bring suit to obtain an injunction to require you to stop refusing to do business with it on a discriminatory basis, your violation of state law is a misdemeanor for which you can be fined up to $2,000 and imprisoned for up to three years. See S.C. Code Ann. 45-9-90. SHL may also bring a civil action 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 you are reversing your refusal to do business with SHL.

Sincerely, William J. Burgess Appignani Humanist Legal Center American Humanist Association

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 interstate travelers. 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 on personal or organization animus to the atheist views of SHL or whether it was purely a business decision intended to avoid controversy. Courts have made clear that there is no distinction under Title II between discrimination based upon personal animosity and that claimed to be purely economic (i.e. to avoid provoking the ire of customers who may themselves be biased against atheists); both are illegal. See e.g. United States by Katzenbach v. Gulf-State Theatres, Inc., 256 F. Supp. 549, 553 (N.D. Miss. 1966).