A copy of one of the advertisements that the Archdiocese of Washington intended to place on WMATA buses. Source: Archdiocese of Washington.

The Catholic Church’s efforts to “Keep Christ in Christmas” have been stymied by a District of Columbia judge this holiday season.  Earlier this month, the federal district court in Washington rejected a request by the Archdiocese of Washington to enjoin the Washington Metropolitan Transit Authority’s enforcement of its transit advertising policy.  The Archdiocese wished to display, during the holiday season, an advertisement on WMATA transit vehicles that contained the language “Find the Perfect Gift” and a religious image.  The advertisement was intended to encourage readers to remember the religious underpinnings of Christmas.  WMATA rejected the advertisement because it violated the authority’s rule prohibiting advertising that advocates or opposes religion.

The Archdiocese filed suit against WMATA on five counts, including alleged violations of the Free Speech and Free Exercise clauses of the Constitution, a violation of the Religious Freedom Restoration Act, and Equal Protection and Due Process claims.  The complaint asked the court to declare the advertising policy unconstitutional and requested the entry of a temporary restraining order and preliminary injunction.

The court first established that the exterior of WMATA transit vehicles is a nonpublic forum, meaning that the authority need only regulate the forum in a viewpoint neutral and reasonable manner.  The Archdiocese conceded as much, but argued that WMATA’s rule—and the authority’s application of it—was viewpoint based.  The court rejected that argument, distinguishing the case from Rosenberger and Lamb’s Chapel—two cases in which the U.S. Supreme Court found viewpoint discrimination in a nonpublic forum.  In both of those cases, the court noted, there was a restriction on particular religious viewpoints at play (rejection of a religious student newspaper’s access to the funds of a public university in Rosenberger and denial of religious-oriented parenting classes held a public school in Lamb’s Chapel), whereas in this case, the transit authority had rejected all religious messages.  While the Archdiocese argued that WMATA accepted advertisements that contained commercial messages about the holiday season—while rejecting the Archdiocese’s religious message—the court disagreed.

The court also found the rule reasonable.  Although the Archdiocese argued that a religious advertisement would not necessarily provoke public outcry or cause disruption in the agency’s provision of transit services, WMATA provided concrete examples of situations in which religious advertisements had done just that.  And while the Archdiocese also argued that WMATA applied its policy in a discriminatory manner—noting that WMATA had previously approved advertising by the Salvation Army and Corepower Yoga, on the grounds that the Salvation Army was a religiously-affiliated organization and yoga originated as a religious practice—the court noted that neither Salvation Army’s nor Corepower’s advertisements contained a religious message.

The court also rejected the Archdiocese’s Free Exercise Clause argument, finding the regulation to be neutral and generally applicable (on the basis that the rule prohibits advertising that promotes or opposes religion), and not a burden on the actual religious practice of the Catholic Church in Washington.  The Archdiocese’s RFRA and other constitutional claims were also rejected.

Following the district court’s decision, the D.C. Circuit this week rejected the Archdiocese’s motion for an emergency stay pending appeal.

Archdiocese of Washington v. Washington Metro. Transit Auth., ___ F. Supp. 3d ___, 2017 WL 6314142 (D.D.C. Dec. 8, 2017), emergency stay pending appeal rejected, ___ F.3d ___, 2017 WL 6504661 (D.C. Cir. Dec. 20, 2017).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.