Archdiocese of Washington, Donald Cardinal Wuerl, a Roman Catholic Archbishop of Washington, a Corporation Sole v. Washington Area Metropolitan Transit Authority and Paul J. Wiedefeld, General Manager, No. 17-7171 (D.C. Cir.) and No. 1:17-cv-02554-ABJ (U.S.D.C. D.C.).  Order denying mandatory injunction pending appeal entered by federal appellate court on December 20, 2017; order denying preliminary injunction entered by federal district court on December 8, 2017.

The United States Court of Appeals for the District of Columbia Circuit has denied mandatory injunctive relief which would have permitted display of an announcement on transit authority inviting consideration of the religious aspect of Christmas.  The Archdiocese sought emergency mandatory injunctive relief in the federal appellate court following the federal district court’s denial of a preliminary injunction which, similarly, had it been granted, would have permitted display of the Archdiocese’s “Find the Perfect Gift” message pending review on the merits.

At issue is the transit authority’s (“WMATA’s”) refusal to permit the display of an advent message on WMATA buses based on  WMATA’s 2015 regulations governing bus signage, which preclude religious messages.  The Archdiocese asserts that the regulations violate the Free Speech and Free Exercise Clauses of the First Amendment.

On December 8, the United States District Court for the District of Columbia denied a request for an injunction permitting display of its message pending resolution on the merits, stating that the archdiocese failed to establish grounds for injunctive relief. Twelve days later, the federal court of appeals followed suit.

The three judge appellate panel observed that on the current record the Archdiocese’s as applied viewpoint discrimination claim is “pure hypothesis.”  The panel dismissed examples of purported differential treatment as not supportive of the Archdiocese’s arguments.  Religious entities are, in the court’s view, permitted to present messages that are sufficiently non-religious that they comport with WMATA guidelines. Further, in the absence of examples of advertisements promoting secular holiday celebrations, the archdiocese failed to support its claim of differential treatment.

The court found that a note referencing a possible distinction between secular and religious Christmas messages does not, as the Archdiocese argues, establish that WMATA in fact employed such a test.  Similarly, insufficient evidence exists to support the assertion that a religious radio station advertised on WMATA buses:  the fact of the advertisement is acknowledged, but the content of the message is unknown.

The appellate panel has concluded that there is no substantial likelihood that the Archdiocese will succeed in its facial challenge to WMATA’s exclusion of religious advertisements, as the Supreme Court has held that reasonable restrictions on subject matter may be imposed in limited public fora. (Emphasis in order.)  The government’s italicized “substantial” likelihood was followed by citation to a Supreme Court holding unconstitutional the preclusion of religious viewpoints on permitted topics of discussions.

The panel opined that the Archdiocese has failed to show that the denial of the requested advertisement unduly burdens the free exercise of religion.  In the absence of viewpoint discrimination, WMATA’s rejection of one proposed ad fails to show any undue burden on religious freedom.

Finally, where likely success on either Free Speech or Free Exercise claims could not be shown, the court concluded that neither could success be foreseen with a hybrid claim.

Briefing on the merits will conclude in mid-February.  Oral argument has not been scheduled. 

The appellate and district court orders may be found here:

17-7171 US Ct App DC Cir Order 2107 12 20 Archdiocese v WMATA

17 cv 02554 USDC DC 2017 12 10 Order Denying Preliminary Injunction