Archdiocese of Washington v. Washington Metropolitan Transit Authority, et al., No. 17-7171 (D.C. App.) Oral argument scheduled for March 26 , 2018 at 9:30 a.m.

In December of 2017, a legal scuffle broke out between the Archdiocese of Washington and the Washington Metropolitan Area Transit Authority (WMATA).  The Archdiocese sought to enjoin WMATA’s refusal to publish the Archdiocese’s “Find the Perfect Gift” advertising campaign, which had been published by WMATA on its regional buses prior to its adoption of guidelines forbidding advertisements that support or oppose religion. The United States District Court for the District of Columbia denied injunctive relief, opining that the Archdiocese had little chance of succeeding on the merits of its claim, as no First Amendment violation could be found. This appeal ensued. Presented here are sketches of the four amicus submissions of entities and persons supporting the Archdiocese of Washington.

The Becket Fund for Religious Liberty, United States Senator Jeff Flake, and the International Society for Krishna Consciousness

Amici submit that this is not one of those difficult matters in which care must be taken to scrutinize the record for subtle, yet unlawful, departures from sound First Amendment principles.  To the contrary, WMATA’s guidelines flat out forbid advertising with religious content, thereby establishing without artifice WMATA’s targeting of religion. The Supreme Court has conclusively held that a law which targets religious beliefs because they are religious beliefs is not constitutionally supportable.  

Moreover, there is no public benefit or forum exception to Free Exercise jurisprudence. The government lacks authority to preference secularism over religion. The Free Exercise Clause of the First Amendment is not subservient to geography or purpose.  The notion that there is no constitutional offense because the Guidelines concern a limited public forum is lacking in legal support. Free Speech and Free Exercise guarantees are distinct and require distinct analyses.  The district court’s conflation of Free Exercise concepts with Free Speech precepts is requires reversal.

There is no ordering principle that would permit or require Free Exercise analysis only after Free Speech analysis.  The WMATA guideline is not neutral and cannot be seen as being without burden merely because others are burdened by WMATA.  Furthermore, the WMATA guidelines cannot be said to be generally applicable where clear preferences are accorded non-religious speech and all religious expression is forbidden.

Becket Fund et al Amici

First Liberty Institute and The Ethics and Public Policy Center

Amici First Liberty Institute and The Ethics and Public Policy Center urge the United States Court of Appeals for the District of Columbia Circuit to hold that the United States District Court for the District of Columbia erred in refusing to enjoin the operation of Guideline 12 of the advertising policy of the Washington Metropolitan Area Transit Authority (WMATA).  Amici join the appellants in seeking reversal because the WMATA guidelines manifest unconstitutional viewpoint discrimination. WMATA’s guidance is not the viewpoint neutral, content based restriction envisioned by the trial court. WMATA has published advertisements expressing WMATA’s view of an an acceptably secular, commercial Christmas. Simply stated, the government may not favor one speaker over another, no matter what sort of forum is in question.  The WMATA guidelines facially forbid religious messages. This error cannot be salvaged, by the inclusion of ‘promotion’ or ‘opposition’ to religious language, for this itself sets unacceptable viewpoint parameters. Even if the regulation were seen as subject based it is nonetheless viewpoint discriminatory, because WMATA allows some Christmas messages but not others.

The ban on  religious messages does not restrict subjects,but forbids expression of religious and secular views on the same subjects.  The federal district court’s assessment of permitted advertising illustrates how easy it is to pick and choose among acceptable and unacceptable religious or other messages, which compounds the deficiencies of the regulation.  Characterizing a religious message as non-religious was sufficient to save the Salvation Army’s advertisement, notwithstanding that the Salvation Army is an operating entity within the Christian Church. Mentioning Mormons, as in an advertisement for The Book of Mormon, was seen to be permissible because the topic was not religion but ridicule.  The constitutional instability of the WMATA policy is underscored by awareness that while The Book of Mormon advertisement was acceptable to WMATA, an advertisement inviting inquiry about Mormons (Church of Jesus Christ of Latter Day Saints) would not be permitted.

The government may not define for people what can be said about otherwise permissible topics:  that is the essence of viewpoint discrimination and is amply illustrated here.

First Liberty_Ethics Amici

The Franciscan Monastery

The Franciscan Monastery of the Holy Land in America intended to promote tourism rather than religion in an advertisement rejected by WMATA.  The rejection of this advertisement provides evidence refuting the trial court’s statement that the Salvation Army’s advertisement was acceptable because its message was constitutional within permissible categories of speech.

Franciscan Monastery Amicus

The United States of America

The constitutional infirmity of viewpoint discrimination is not difficult to grasp:  where a government opens a forum to expression, the government may not pick and choose who may speak on the basis of ideology, opinion or perspective.  

Selection among Christmas messages to support commercial but forbid religious expression is exactly what the First Amendment forbids.  The capacity for error in unconstitutional viewpoint discrimination only underscores the importance of its avoidance. The trial court’s error with respect to the nature of the Salvation Army and the court’s need to rationalize as “satirical” the acceptability of The Book of Mormon advertisement illustrates this point.

US Amicus Brief

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