US court oks ban on religious holiday ads; battle continues after Christmas

DCNFKevin Daley, DCNF

A federal appeals court has denied the Archdiocese of Washington’s bid to force the city’s public transportation agency to display its Christmas ads.

The U.S. Court of Appeals for the D.C. Circuit issued an order Wednesday suggesting the agency could lawfully refuse to run the archdiocese’s explicitly religious holiday advertisement. The Washington Metro Area Transit Authority (WMATA), the agency which administers bus and subway service in the D.C. metro area, does not run ads that promote religious observance. The archdiocese claims the policy is unconstitutional viewpoint discrimination.

The proposed ad promotes a Catholic holiday campaign called “Find the Perfect Gift,” which encourages participation in various forms of Christmas observance.

The order, issued by a three-judge panel, explains that the archdiocese failed to show WMATA’s policy favors secular holiday views over religious ones. Though WMATA excludes religious groups promoting Christian Christmas practice, the agency has not run ads expressing secular views about the holiday, meaning no viewpoint discrimination has taken place.

“[The archdiocese] has not come forward with a single example of a retail, commercial, or other non-religious advertisement on a WMATA bus that expresses the view that the holiday season should be celebrated in a secular or non-religious manner,” the order reads.

They further say the archdiocese failed to show that WMATA’s policy substantially burdens Catholic religious practice.

Supreme Court precedent allows the government to impose reasonable limitations on speech and expression in certain public spaces like transportation hubs.

Archdiocese of Washington's proposed WMATA ad. (Archdiocese of Washington)

Archdiocese of Washington’s proposed WMATA ad. (Archdiocese of Washington)

The archdiocese argues WMATA’s policy is unreasonable, arbitrary, and discriminatory under the First Amendment. They claim, for example, that a commercial ad promoting Christmas shopping would satisfy agency advertising guidelines, but a religious ad would not.

“To borrow from a favorite Christmas story, under WMATA’s guidelines, if the ads are about packages, boxes or bags — if Christmas comes from a store — then it seems WMATA approves,” said Ed McFadden, the archdiocese secretary for communications. “But if Christmas means a little bit more, WMATA plays Grinch.”

The Wednesday order was not a ruling on the merits of the lawsuit; it simply left in place a lower court ruling denying the archdiocese an injunction. The D.C. Circuit directed the parties to prepare for expedited briefing and argument in the case. Full briefing on the substance of the lawsuit must be filed by mid-February. Oral arguments will be scheduled for the first available date once each side has filed its briefs.


Editor’s note: The writer’s fiancee is employed by a law firm involved in this litigation. 

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