Saga Of A Civil Rights Complaint (April 1998)

April 1998

The following correspondence documents a Civil-Rights victory. See story on page 1.

October 23, 1997

Dear Mr Kopp:

We are writing to inform you that, under the Civil Rights Act, it is strictly illegal to discriminate (or show favoritism) on the basis of religion. As an official “place of accommodation” Ken Kopp’s Fine Foods has violated the Civil Rights Act by offering Catholics who have gone to Mass a discount not offered to other shoppers.

The federal code reads: “All 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 or segregation on the grounds of race, color, religion, or national origin.”

Our Foundation has stopped this type of church-bulletin discount violation in other parts of the country. We have never encountered before your particular offensive practice of singling out members of one particular denomination for favoritism! Your message is certainly coming out loud and clear: only Catholic customers are truly valued. As an atheist customer who has frequented your store an average of twice a week for the past six years or more, to the tune of probably $100 a week on average, I’d appreciate one of these special coupons myself!

We are requesting that you immediately cease and desist offering and honoring this illegal promotion. Please note that it would be illegal even if you offered the same to nonCatholic church-goers as well. Please advise us promptly of your compliance with the Civil Rights Act, so that we may regard this as a closed case.

Annie Laurie Gaylor, Staff
FFRF, Inc.

October 28, 1997

Dear Ms. Gaylor:

Please be advised that this office represents Ken Kopp’s Fine Food. This is a follow-up to your letter of October 23, 1997.

From the conclusions drawn in your correspondence, it appears that you are unaware of our client’s business practices. Our client does advertise citywide in the Madison newspapers, and locally in neighborhood publications. Coupons are available and advertisements are placed in church bulletins. If a coupon from a church bulletin is brought to the store for redemption, it is honored regardless of anyone’s denomination, belief or non-belief. Coupon presenters are not questioned about their beliefs or denomination or whether they attended Mass. Anyone presenting the coupon and making a $20.00 purchase receives a gallon of milk without further inquiry.

Our client is proud of its years of service to people of all creeds. Your patronage and, those sharing your beliefs, have always been and will always be welcomed. You advised that you are “an atheist customer who has frequented [the] store an average of twice a week for the past six years or more, . . .” Your actions confirm the fact that you are not denied access to the store, that your patronage is neither unwelcomed, objectionable nor unacceptable. There is, accordingly, no unlawful discrimination, nor violation of any local, state or federal civil rights legislation, nor is there a violation of Wis. Stats. � 106.04(9), Wisconsin’s Public Place of Accommodation statute.

Pursuant to your request, I enclose a coupon from a church bulletin for your free gallon of milk. This coupon is redeemable and available to persons of all creeds and beliefs. It may be redeemed at Ken Kopp’s Fine Foods in the same manner as those who pick up the coupon at Sunday Mass. You are also welcome to take advantage of future coupons. This Church is only a few blocks from your home. Simply stop at the Church any Sunday and pick up a bulletin which contains the coupon. In that manner, should you desire and elect, you will be treated as any other coupon-redeeming customer and neighbor regardless of your religious affiliation or beliefs.

As a personal aside, until a year ago, I was a resident of the Monroe Street neighborhood and lived in that neighborhood for thirty-two years. I have seen many changes in the neighborhood. One of the great strengths of the neighborhood has been the coexistence and tolerance the neighbors and businesses show one another regardless of individual beliefs and socio-economic backgrounds. I empathize with you to the extent you find a small percentage of our client’s marketing “a particularly offensive practice.” The neighborhood has always been one that prides itself on understanding and tolerance as opposed to looking for ways to be offended. Freedom From Religion Foundation, Inc. is a tribute to this tolerance and exemplary of the fact that not all offensive behavior is illegal. Your letter understandably expresses your desire not to be treated unfavorably because of your beliefs. That courtesy has been extended to you by Ken Kopp’s Fine Foods and its employees. I am assuming you will extend the same courtesy to my client.

If you have any further questions in regard to this matter, do not hesitate to contact me.

Timothy C. Sweeney

November 17, 1997

Dear Mr. Sweeney:

We represent the Freedom From Religion Foundation, Inc. We are writing you on its behalf with regard to your October 28, 1997 letter to Annie Laurie Gaylor concerning Ken Kopp’s Fine Foods.

Your letter states that because Ms. Gaylor has not been denied access to Ken Kopp’s and because her patronage is neither “unwelcomed, objectionable nor unacceptable,” there has been no violation of any local, state or federal civil rights legislation, including the state’s public accommodations law. However, the public accommodation laws are not so restricted in their scope. Both the state and City of Madison public accommodation laws prohibit price discrimination by places of public accommodation based on race, gender, religion or other specified factors. See sec. 106.04(9), Stats.; Madison General Ordinances sec. 3.23(5). Novak v. Madison Motel Associates, 188 Wis. 2d 407, 525 N.W.2d 123 (Ct. App. 1994). Offering a discount only to members of a particular religious group is prohibited by those laws, regardless of whether other customers’ business is welcome.

In Novak, the Wisconsin Court of Appeals held that the state public accommodations law prohibited the Holiday Inn East Towne from offering free drinks to women only during its “ladies’ night” promotion. (It also noted that the Madison ordinance parallels state law.) In rejecting the hotel’s arguments, the court noted that the hotel’s “interpretation would permit offering free drinks (or other discounts) to persons of one race and not to persons of another race, or to persons of one religion and not to persons of another religion. This is inconsistent with the obvious goal of the statute and is an unreasonable interpretation of the statute.” Id. at 415 (emphasis added).

Your letter states that the coupon “is redeemable and available to persons of all creeds and beliefs.” That is not what the coupon states, of course–it expressly conditions redemption on going to Mass. Moreover, regardless of whether anyone at the store actually questions the customer whether he or she attended Mass, the plain wording of the coupon discourages any customer who has not attended Mass from attempting to use it. Assuming that the great majority of Ken Kopp’s customers are honest, they likely would not wish to engage in misrepresentation by presenting the coupon without having attended Mass. In the words of Mr. Kopp himself, as quoted in the October 23, 1997 Wisconsin State Journal, “if they didn’t [attend Mass], then they’re lying . . .”

We also question the asserted availability of the coupon to individuals who are not members of the church. Unless the church is prepared to print a large number of bulletins and make them freely available to all requesters–and it is doubtful that the church’s printing budget contemplates such a public service–the practice of providing promotional coupons solely in church bulletins constitutes an unlawful preference for church members.

There is nothing in the state or local public accommodations laws that would prohibit Ken Kopp’s Fine Foods from offering discount coupons in a church bulletin, provided that the same offer is extended to others on a non-discriminatory basis. That requires that the coupons not express a preference for certain religious practices and that the coupons be made as readily available to non-church members as they are to church members, through an in-store display or newspaper advertisement. Accordingly, in the interest of resolving this matter without the need to involve the relevant city or state administrative enforcement agencies, we ask on the Foundation’s behalf that Ken Kopp’s Fine Foods modify its promotional practices by deleting all references to attending Mass from its promotions and by making its coupons freely available to the general public.

We look forward to a response at your earliest convenience.

Jeffrey J. Kassel

December 15, 1997

Dear Mr. Kassel:

This is a follow-up to your letter of November 17, 1997. Therein, you cited Wisconsin Statutes, Madison General Ordinances and Novak v. Madison Motel Associates, 188 Wis. 2nd 407, 525 N.W.2nd 123 (Ct. App. 1994) as support for the premise that:

“Coupons not express a preference for certain religious practices”; and
“Coupons be made readily available to non-church members as they are to church members, through an in-store display or newspaper advertisement.”
We both appear to be in agreement that the Madison General Ordinances Section 3.23(5) is very similar to the applicable Wisconsin Law, Wis. Stats. 106.04(9) and address the City and state public accommodations law.

It must initially be determined which, if any, of the subsections of Wis. Stats. 106.04(9) apply. There does not appear to be any issue in regards to an admission charge, lodging prices, automobile insurance, or rent, thereby eliminating subsections 1, 1m, 3m, 4 and 5 of Wis. Stats. 106.04(9).

I repeat our position as expressed to Ms. Gaylor in my letter of October 28, 1997 that Ms. Gaylor had not been denied access to our client’s premises and that her continued patronage is demonstrative of the fact that her patronage is not unwelcome, objectionable or unacceptable. This was not an attempt to oversimplify the applicable statutes, nor an attempt to “restrict” the public accommodation laws as alleged in your letter of November 17th. Rather, it was a statement which demonstrates that Wis. Stats. 106.04(9)(3) (one of the only two possible remaining applicable subsections) does not apply to this fact situation.

Accordingly, we are left with the analysis of whether the sole remaining subsection of the Wisconsin Statutes, Wis. Stats. 106.04(9)(2), is applicable. Said subsection prohibits “. . . preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement because of . . . creed . . .” There appears to be a threshold issue of whether the lack of creed constitutes “creed” as used in the statutes. The only statutory definition of “creed” that I was able to locate was in Wis. Stats. 111.337(1), defining “creed” as used in the employment discrimination context. Therein, the statutes defines[sic] “creed” as “religious observance or practice.” It is my understanding that the whole basis of Ms. Gaylor’s objection, as well as the basic premise of your client “Freedom From Religion, Inc.,” is that they are opposed to and reject any religious observance or practice. Does lack of creed constitute creed? If lack of creed does not constitute creed, Freedom From Religion Foundation, Inc. is not a member of a protected class entitled to the protection of Wis. Stats. 106.04(9).

There appears to be an additional threshold issue of whether the purchase of goods in excess of $20 and the corresponding gallon of milk are “services or facilities” as used in Wis. Stats. 106.04(9)(2). In this regard, Novak provides us with some direction. In Novak, Madison Motel contended that the drinks in a bar were not “services or facilities,” but rather “goods” and therefore not covered by this section. In disagreeing with Madison Motel, the appellate court stated:

“A bar is providing a service when it sells drinks to customers for consumption at the bar. Customers go to a bar to buy drinks, but also to sit in the establishment and, usually, to socialize. A bar offers more to its customers than the opportunity to purchase goods, which they could purchase at retail stores.” (emphasis added)

In our case, it appears clear that a grocery store is certainly distinguishable from a bar. Our client’s grocery store is a retail store. The gallon of milk and the $20 of other grocery goods are clearly “goods” and not “services or facilities.” In all of the years which our client has operated the grocery store, there has never been an incident of someone sitting in the establishment, opening and consuming their gallon of milk in the store for the purpose of socializing. It is certainly not the practice of grocery store customers, nor the intent of grocery stores that the goods sold will be consumed on the premises in a social atmosphere.

If your client can overcome on the initial threshold issues of “creed” and services or facilities,” the next issue would be whether Wis. Stats. 106.04(9)(2) prohibits the coupon as presently offered. Again, I refer you to my correspondence with Ms. Gaylor in regards to the business practices of my client to determine whether or not preferential treatment does in fact occur in the redemption of the coupon. If the milk and the groceries are not “goods” and if lack of creed constitutes creed, there does appear to be amendments we can make to this coupon to eliminate any and all questions of whether or not it constitutes a preference.

The final issue is whether the statutes, ordinances, and/or case law require a merchant, who elects to and pays for the coupon to be printed in an[sic] church bulletin, to incur the expense of making that same coupon available in some place other than the church bulletin. I find no basis in the statutes or ordinances that require a private merchant to incur the additional advertising expense to make the availability of that coupon more convenient to your client and others simply because your client and others do not want to stop by a church and pick up the coupon. It is difficult to believe that the legislative intent of Wis. Stats. 106.04(9)(2) requires that any coupons of any retail merchant published in a church bulletin must be made readily available through in-store displays or additional newspaper advertisements. The reasonable extension of this provision would be to require a retail merchant who places a coupon in a liberal publication, newsletter, or newspaper to also make this coupon available through an in-store display or require the merchant to purchase additional advertising in a conservative newspaper. “Political beliefs” are a protected class under the Madison Ordinances. Likewise, if a merchant publishes a coupon in a publication, newsletter or newspaper that targets women, must the merchant also make this coupon available through an in-store display or require the merchant to purchase additional advertising in a similar media which targets men? Following your position, a merchant would be so required, or be in violation of Wis. Stats. 106.04(9)(2) for giving preferential treatment in a place of public accommodation because of sex. Would a coupon in Ebony magazine require your suggested remedial action? The analogies would lead to unreasonable results which are not consistent with the legislative intent of Wis. Stats. 106.04(9), or Madison General Ordinances 3.23(5). I was unable to locate any case law supportive of your position that any coupon which may be published in a publication which may be allegedly more convenient for some would have to be made available to all through an in-store display or counter-balancing advertisement. This is an over-burdensome and unreasonable standard upon retail business owners, especially small neighborhood businesses, that was not intended by the legislation.

After you have had an opportunity to review this matter and discuss the same with your client, please contact me so that we may further discuss this matter. We look forward to your response at your earliest convenience.

Timothy C. C. Sweeney

December 29, 1997

Dear Mr. Sweeney:

Thank you for your letter dated December 15, 1997 responding to ours of November 17, 1997 regarding the coupon promotion offered by Ken Kopp’s Fine Foods.

Your letter challenges our assertion that the public accommodations law prohibits discounts in the sale of goods based on creed. Your clients’ position, it appears, is that a seller of goods may discriminate on the basis of religion by offering a discount only to those of a particular faith. Does your client believe that it would be permissible for a hardware store to offer a discount only to Jews or Muslims? Or that a pharmacy could offer sale prices only to non-Catholics? Yet that is exactly what Ken Kopp’s Fine Foods has done, by offering its free-milk promotion only to those who attend Catholic Church.

We do not agree with your contention that sec. 106.04(9)2 is the only statutory provision at issue here. Section 106.04(9)1 provides that no person may “[d]eny to another . . . the full and equal enjoyment of any public place of accommodation because of . . . creed. . . . Whether or not Ken Kopp’s Fine Foods says that it welcomes the patronage of all persons, its coupon promotion operates to deny non-Catholics the full and equal enjoyment of the store because they have no opportunity to take advantage of a discount offered only to church members.

Your suggestion that the statutory prohibition against discrimination based on creed does not ban discrimination against nonbelievers is without merit. In the context of the federal laws banning employment discrimination based on religion, the courts have held that Title VII “protects those who refuse to hold, as well as those who hold, specific religious beliefs,” Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033 (10th Cir. 1993), and have specifically found that atheists are protected by laws banning religious discrimination. Young v. Southwestern Savings and Loan Ass’n, 509 F. 2d 140 (5th Cir. 1975). There can be little doubt that the public accommodations law would be similarly interpreted.

As you know, the Freedom From Religion Foundation objects both to the wording of the coupon, which conditions its use on attending Mass, and to the exclusive distribution of the coupon in church bulletins. Your letter does not attempt to defend the coupon’s wording; indeed, you indicate some willingness to eliminate that restrictive language. We would appreciate a clear statement with regard to whether your client is, in fact, prepared to eliminate that language.

The other issue concerns the restricted distribution of the coupon. You compare the placement of the coupon in a church bulletin to a coupon published in a liberal newspaper or a magazine such as Ebony, which “target” certain audiences. Those publications are not comparable to a church bulletin, however, because they are generally available to the public. A church bulletin, in contrast, is not merely directed at a particular readership, but is distributed solely to those who are members of or attend the church. While you suggest that our clients could pick up the coupon at the church, we doubt that Madison churches see their role as providing marketing support for your client’s business promotions. Nor is there any reason why a customer should be compelled to visit a church to be able to get a good deal on a gallon of milk.

Your client’s restrictive promotional practice denies to our clients and others, based on creed, the “full and equal enjoyment” of Ken Kopp’s Fine Foods. If your client is unwilling to change its marketing promotions to eliminate this discriminatory practice, the Freedom From Religion Foundation intends to pursue its legal remedies. Under sec. 106.04, Wis. Stats., a complainant has the option of filing an administrative complaint with the Equal Rights Division or bringing an action directly in circuit court, with the full range of remedies provided by sec. 106.04(10)(e)1. City ordinances also provide an administrative remedy, and we note in that regard that if the holder of an alcohol beverage license has been found to engage in discrimination, the city attorney is required by ordinance to commence a proceeding for the revocation, suspension or nonrenewal of that license. Madison Gen. Ord. Sec. 3.23(9)(c)2.b.

We hope that this matter can be resolved without the need for the initiation of formal proceedings. We look forward to your proposal for a prompt resolution.

Jeffrey J. Kassel

March 5, 1998

Dear Mr. Kassel:

Please be advised that our client has discontinued the coupon ad which was the subject of our correspondence over the last several months. Our client has, accordingly, modified its promotion.

Timothy Sweeney

Freedom From Religion Foundation