Nevermind that Atheism is a Religion, because it Requires Faith and Belief.
There is a restaurant in North Carolina that received national attention after a story went viral concerning a 15% discount offered to customers who paused for a moment of gratitude before eating their meal. In a nutshell, staff that observed patrons pausing to pray or express silent gratitude before eating could give a discount, marked on the receipt as “Praying in Public”.
The “Freedom from Religion Foundation” (“FFRF”) claims to be a nationwide non-profit organization of over 21,000 members. According to its website, FFRF members are atheists, agnostics, skeptics and “freethinkers”. The membership of FFRF is militant, in the sense that time and again their effort is to repress and eliminate all public forms of religious expression, citing to the fallacious premise (embedded in the organization’s name) that a “freedom from religion” exists at law.
Freedom from religion is a legal fiction. The First Amendment was never intended to provide a “separation of church and state”. Rather, the First Amendment clearly states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Our U.S. Government is not duty bound to ensure that no forms of religious expression wind up in public places. Rather, our U.S. Government is constitutionally prohibited from establishing religion, or preventing the free exercise of it.
But this nuance is rather lost on FFRF. In a letter it sent to the owner of the restaurant that offered the “prayer discount,” a staff attorney represented that offering such a discount “violates the Federal Civil Rights Act” and that “Any promotions must be available to all customers regardless of religious practice on a non-discriminatory basis.”
42 U.S.C. 2000a, et seq. is part of the Federal Civil Rights Act that defines “public accommodations.” It holds that “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, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.”
A “public accommodation” as defined by FCRA includes “any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station.” (42 U.S.C. 2000a(b)(2)). As such, the diner in question likely constitutes a “public accommodation.”
We cannot forget Congress’ legislative intent in enacting the FCRA: making it illegal for businesses offering “public accommodations” to refuse to serve patrons on the basis of race, ethnicity, or religion. Prior to this law, businesses could refuse to serve patrons for being black, or Hispanic, or Jewish, etc. Refusing to serve patrons on such a basis is wrong.
However, there is nothing at all illegal (or discriminatory) about offering an incentive — a discount — to any patron, regardless of religious belief, for expressing a moment of silent gratitude before eating a meal served on premises. Silent moments of gratitude are apparently bad things in the view of FFRF, and it is misstating the law and its right to insist that the “prayer discount” be ended in three principal ways:
- FFRF improperly suggests that the promotion offered at the diner was not made available to “all customers regardless of religious practice.” There was no showing of this in the letter itself, nor is there any proof given for it outside the letter. Any patron — including someone pausing for a moment to mentally recite Carroll’s Jabberwocky — would arguably have been just as eligible to receive the discount as a Catholic who prayed to God with folded hands and a made sign of the cross at the end. Apparently management never sought to define acceptable religious (or non-religious) practice in relation to the discount; it only sought to award patrons with a discount when they expressed some form of gratitude before eating. By this standard, the next target of FFRF will be our nation’s Thanksgiving Holiday.
- FFRF should know (before making representations about the law) that a case against the diner in question is not actionable without an actual “case or controversy”. Courts — particularly federal courts of limited jurisdiction — do not entertain cases that essentially amount to seeking an advisory opinion. There must actually be an injured plaintiff seeking redress for an injury. Here, FFRF cannot claim that management offered the discount in a discriminatory way: there was not even a requirement that the patron actually pray (how could the management even determine this, after all?). Rather, the discount was applied for patrons who momentarily paused to make a gesture of (apparent) gratitude before eating. FFRF cited not a single atheist who went to the diner, briefly paused to reflect on the goodness of the food laid before them, and who was refused a discount. FFRF did not write on behalf of a particular patron to demand that he or she receive the discount because management refused the patron’s request. Equal application of the discount would be the extent of the relief available in court (along with attorney’s fees), but equal application isn’t what FFRF sought. Rather, FFRF sought an end to the discount without citing even one potential plaintiff who could actually bring a claim.
- While FFRF can certainly assert its belief that the “prayer discount” is illegal under the FCRA, my research indicates that there are no reported cases that actually hold this. It is simply an unsupported argument being made by FFRF to scare business owners.
The reaction of this business to FFRF’s letter is certainly understandable; small business owners can’t be expected to become embroiled in costly legal battles when they are in the business of serving tasty food. But it is nonetheless unfortunate that a business whose only “crime” was encouraging gratitude has been made to believe that commercial activity in today’s marketplace precludes it.