- The Washington Times - Saturday, December 16, 2017

Metro told a federal appeals court on Friday that a lower court was right to reject an injunction that would have let the D.C. archdiocese advertise a Christmas campaign on city buses.

Metro defended the lower court’s ruling denying the Archdiocese of Washington’s “Find the Perfect Gift” campaign in a 32-page filing entered in response to a new emergency motion for injunction pending appeal currently being considered by the U.S. Circuit Court of Appeals for the District of Columbia.

The archdiocese sued Metro in U.S. District Court in Washington last month after the transit agency refused to let it advertise a website, FindthePerfectGift.org, on Metrobus exteriors.

The archdiocese’s lawyers asked U.S. District Judge Amy Berman Jackson to grant a preliminary injunction forcing Metro to run the ads, but she ruled against them last Monday, prompting the church’s attorneys to file another motion for injunction in federal court on Tuesday.

The appeals court ordered Metro to respond by Monday, and on Friday its attorneys reiterated concerns over the archdiocese’s proposed ads and insisted the church’s case was without merit.

The archdiocese “has not established anything close to a likelihood of success, much less the virtual certainty of success that it must show to justify the extraordinary relief it demands,” Metro’s attorneys wrote Friday.

“Movant’s failure to demonstrate any likelihood of success on its First Amendment claims alone defeats its request for a mandatory injunction pending appeal,” Metro’s motion reads in part.

Metro previously argued successfully in federal court that the proposed advertisement was covered by policies it adopted in 2015 prohibiting anything “issue-oriented, including political, religious and/or advocacy in nature.”

“Advertisements that promote or oppose any religion, religious practice or belief are prohibited,” according to Metro’s ad policy.

The archdiocese claimed that Metro’s rejection constituted a violation of its First Amendment rights “because the prohibition creates an unreasonable and disproportionate burden on the exercise of the archdiocese’s speech without any legitimate justification.”

The district court judge ruled differently, however, and found that the “advertisement does not seek to address a general, otherwise permissible topic from a religious perspective.”

The “sole purpose of directing the public to www.findtheperfectgift.org is to promote religion,” the judge wrote in the lower court’s opinion. “The website declares: ‘JESUS is the perfect gift. [F]ind the perfect gift of God’s love this Christmas.’”

According to Metro, approving the archdiocese ad could set a precedent that could quickly become problematic.

“And if [Metro] were forced to carry Movant’s advertisement, any decision not to carry advertisements criticizing Catholic teaching on sexuality or disparaging Islam or other faiths would immediately be vulnerable to a viewpoint discrimination claim, making it virtually impossible for [Metro} to close its advertising space to divisive, demeaning or dangerous advertisements. The equities cannot favor such an approach,” the transit agency argued Friday.

The archdiocese’s lead attorney did not return an email seeking comment.

“In a society concerned more with what’s under the tree, and where the birth of Jesus is treated as an intrusive element to the season, we simply want to share the real Christmas story, the full joy of Christmas, with our neighbors and share the Christmas spirit with those in need,” Ed McFadden, secretary of communications for the Archdiocese of Washington, has said previously.

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