910 F.3d 1248
D.C. Cir.2018Background
- The Roman Catholic Archdiocese of Washington sought to run a Christmas-season exterior Metrobus ad promoting Advent/Christmas Masses, charitable service, and linking to a campaign website with Mass schedules and parish resources.
- WMATA denied the ad under a Board policy prohibiting advertisements that “promote or oppose any religion, religious practice or belief,” citing the ad’s religious imagery and the website’s religious content.
- The Archdiocese sued; the district court upheld WMATA’s denial, and a D.C. Circuit panel affirmed, treating bus exterior ad space as a nonpublic forum and WMATA’s policy as permissible subject-based regulation.
- A petition for rehearing en banc was filed; a majority of eligible judges declined to rehear, but Judges Griffith and Katsas dissented from the denial of rehearing en banc.
- Judge Griffith’s dissent argues the panel conflicted with Supreme Court precedent (Rosenberger, Lamb’s Chapel, Good News Club, Cornelius, Mansky) because WMATA’s policy amounts to viewpoint discrimination by barring religious viewpoints on subjects (holiday practices, charitable giving) that WMATA allows others to address.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WMATA’s ban on ads that “promote or oppose any religion” is viewpoint discrimination in a nonpublic forum | Archdiocese: Policy suppresses religious viewpoints on otherwise-permissible subjects (holiday giving, how to spend Christmas) and thus is unconstitutional | WMATA: Advertising space is a nonpublic forum; government may exclude certain subjects (religion) and restrict content accordingly | Panel: Upheld policy as permissible in a nonpublic forum; rehearing en banc denied. Dissent: Policy is viewpoint discrimination under Supreme Court precedent and should be invalidated |
| Whether a ban that treats all religions alike is permissible | Archdiocese: A categorical ban on religious speech still discriminates against the viewpoint ‘religion’ and is unconstitutional | WMATA: Treating all religions alike is not viewpoint discrimination; it is a subject exclusion | Dissent: Supreme Court has held that excluding religion as a viewpoint (even if all religions are excluded) is unconstitutional when others may express secular viewpoints on same topics |
| Whether the forum’s scope (bus exteriors vs. schools/university forums) matters to viewpoint protection | Archdiocese: Forum breadth is irrelevant; viewpoint discrimination is prohibited in any forum where the government allows discussion of the subject | WMATA: Bus-ad forum is narrower and less suited to the kind of protections applied in Rosenberger, Lamb’s Chapel, Good News Club | Dissent: Viewpoint discrimination is unlawful in any forum; prior cases involved various forum types and still protected viewpoint from religious speakers |
| Whether security/discord concerns justify categorical exclusion of religious ads | Archdiocese: WMATA’s separate policies address controversial ads; a blanket ban is unreasonable | WMATA: Public safety and potential for offense may justify stricter controls | Dissent: Concerns might justify narrow limitations, but WMATA did not justify a categorical ban; precedent requires scrutiny when religious viewpoints on permitted subjects are excluded |
Key Cases Cited
- Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (religious viewpoint on otherwise-permissible topics cannot be excluded)
- Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (denying use of school facilities for religious viewpoint on family issues is viewpoint discrimination)
- Good News Club v. Milford Cent. Sch., 533 U.S. 98 (exclusion of religious viewpoint from after-hours school programs addressing morals/character is viewpoint discrimination)
- Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788 (forum analysis: government may impose subject restrictions in nonpublic forums but not viewpoint discrimination)
- Archdiocese of Wash. v. WMATA, 897 F.3d 314 (D.C. Cir. 2018) (panel opinion upholding WMATA policy; rehearing en banc denied)