Appeals Court Sides With Metro's Decision to Ban Catholic Christmas Ad

Posted: Jul 31, 2018 5:30 PM

The D.C. Court of Appeals sided with the Washington Metropolitan Area Transit Authority (WMATA) over the Roman Catholic Archdiocese of Washington Tuesday in their lawsuit challenging metro’s refusal to use their Christmas advertisement.

The archdiocese sued after WMATA rejected their advertisement in November for an initiative urging the public to consider the spiritual side of the Christmas season by learning about Advent and other Catholic Christmas traditions. The advertisement depicts shepherds under a starry night and the simple slogan “Find the Perfect Gift.”

Metro said that the ad violated their policy prohibiting “all non-commercial advertising, including any speech that purportedly promotes a religion, religious practice, or belief,” because “it depicts a religious scene and thus seeks to promote religion.”

Judge Judith Rogers wrote in the court’s opinion Tuesday that the archdiocese’s “claim of discriminatory treatment is based on hypothesis.”

“Were the Archdiocese to prevail, WMATA (and other transit systems) would have to accept all types of advertisements to maintain viewpoint neutrality, including ads criticizing and disparaging religion and religious tenets or practices,” she wrote. “Because the Archdiocese has not demonstrated a likelihood of prevailing on the merits or that the equities weigh favorably, it has not met the demanding standard for a mandatory preliminary injunction.”

The archdiocese had argued that WMATA’s policy, that bans advertisements that promote or oppose any religion, violates their First Amendment rights to free speech and the free exercise of religion.

Judge Robert L. Wilkins wrote in his separate concurrence that Metro’s policy is acceptable because it “does not take sides; it restricts all speech on the topic equally, without discriminating within the defined category.”

The archdiocese also complained about the seemingly arbitrary implementation of the ban, pointing to spiritual yoga ads that have been permitted.

“There are no formal regulations to direct the implementation or interpretation of this ban,” the church’s complaint points out, “nor is there any published guidance about what speech is forbidden according to this guideline. The enforcement of this ban is left entirely to the discretion of WMATA staff under the direction of Defendant Wiedefeld.”

The court rejected the claim that the yoga ad was religious, saying their argument “ignores that ad is not recognizably religious as the archdioceses ad plainly is.”

Judge Brett M. Kavanaugh, the third judge on the panel, had called Metro’s ban on religious advertising “pure discrimination” during oral arguments. However, Kavanaugh could not participate in the decision because of his pending nomination to the U.S. Supreme Court.

“The Archdiocese of Washington is disappointed by today’s federal appeals court ruling, and we are reviewing the decision and opinions to determine our next steps,” Ed McFadden, a spokesman for the Archdiocese commented, “Today, however, is a reminder that freedom of religions and expression in the public square should never be taken for granted, and we will continue defend those rights at every opportunity.”

The Department of Justice had filed an amicus brief in support of the Archdiocese in the case.

Ashley McGuire, a Senior Fellow with The Catholic Association, commented that “in siding with the D.C. Metro, the D.C. Circuit Court of Appeals rubber stamps discrimination against religious speech. The Court's claim that Metro ‘does not take sides’ regarding religious speech is laughable.”

“To the contrary Metro, which is funded and run by the federal government, has taken the side of restricting any and all religious speech, a clear violation of the First Amendment,” she added. “Tinder and Blue Apron can buy ads, but the Catholic Church cannot. It's a textbook case of discrimination; it sends the clear message that secular speech is welcome in the public, but religious speech is offensive and should be barred.”