Last December, we reported on a federal district court’s denial of a motion for preliminary injunction relating to the Archdiocese of Washington’s unsuccessful efforts to post Christmas-season advertising on transit vehicles owned and operated by the Washington Metropolitan Area Transit Authority.  Unfortunately for the Archdiocese, Christmas did not come in July either.  Last week, the federal Court of Appeals for the D.C. Circuit affirmed the denial of preliminary injunctive relief.

The facts of the case are available on our post regarding the district court’s decision.

On appeal, the appellate court (which included as a panelist Supreme Court nominee Judge Kavanaugh) agreed with the district court.  First, the court agreed that the advertising space on WMATA transit vehicles constitutes a non-public forum, where the government can exercise greater control over content yet must adhere to requirements of viewpoint neutrality and reasonableness.  In so ruling, the D.C. Circuit joins a majority of federal appeals courts that have now ruled that transit advertising spaces are non-public fora.

Second, the appeals court was unimpressed with the Archdiocese’s arguments that the prohibition on religious content in WMATA transit advertisements is actually a form of viewpoint discrimination.  As it did in the court below, the Archdiocese asserted that the prohibition of religious speech in transit advertising favored non-religious viewpoints.  But the court of appeals observed that the restriction on religious advertisements prohibited any advertisement on the topic of religion, regardless of its viewpoint.  In arriving at that conclusion, the court distinguished Supreme Court cases—including Rosenberger, Lamb’s Chapel, and Good News Club—that had found the exclusion of religious messages to be viewpoint discrimination.  In essence, the D.C. Circuit found that WMATA’s prohibition on religious content was broader, and went only to the subject matter of the messages, than the viewpoint-discriminatory regulations at issue in those cases.

Third, the appeals court agreed that the regulation in question was reasonable in light of the purposes of WMATA’s transit advertising forum.  The court observed that the transit advertising policy had been adopted after substantial study, and further found that WMATA had been consistent in its application of the advertising policy and had not shown any animus toward religion.

The D.C. Circuit also rejected the Archdiocese’s arguments that the transit advertising policy violated the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act.  The court could not conclude that the policy had been adopted out of hostility toward religion, or that the policy was directed at religious speakers, and the court further questioned whether RFRA applied to WMATA, as the transit agency is an arm of the Maryland and Virginia state governments (in addition to the District of Columbia), and RFRA does not apply to states.

Archdiocese of Washington v. Washington Metro. Transit Auth., ___ F. 3d ___, 2018 WL 3625417 (D.C. Cir. Jul. 31, 2018)

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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.