- The Washington Times - Tuesday, July 31, 2018

A federal appeals court said Tuesday that Metro can ban religious advertisements and other advocacy ads, ruling against the Archdiocese of Washington, which had sought to place pro-Christmas posters on buses.

Tuesday’s ruling by the full U.S. District Court for the District of Columbia upheld a decision by a three-judge panel in December that said Metro officials were within their rights to reject the archdiocese’s posters as part of the transit agency’s ban on ads that promote religion, religious practice or belief.

The Archdiocese of Washington sued Metro late last year, claiming a First Amendment right to the ads. In addition, the Justice Department filed a “friend of the court” motion in the case in support of the archdiocese’s claim, which the court rejected.

“City buses, by contrast, enjoy no historical tradition like parks and sidewalks because transit was a private enterprise in most American cities until the second half of the twentieth century,” Judge Judith W. Rogers, a Clinton appointee, wrote in the opinion for the court.

Judge Robert L. Wilkins, an Obama appointee, concurred in the judgment, saying the Constitution permits the government control over expressive content in limited circumstances.

Judge Brett M. Kavanaugh, whom President Trump has nominated to the Supreme Court, was part of the original three-judge panel, but he did not participate in issuing Tuesday’s opinion.

A lawyer representing the archdiocese did not respond to a request for comment.

Robert W. Tuttle, a law professor at George Washington University, said he doubts the Supreme Court would accept an appeal, saying there’s no direct split among lower courts for the justices to resolve.

The archdiocese’s proposed ad depicted a starry night with three shepherds and sheep on a hill, all facing a bright star. The words “Find the Perfect Gift” were displayed on the ad, along with a website address and social media hashtag. The website promoted the Catholic Church with a link to “Parish Resources,” prayer cards and daily reflections.

The appellate court said that made the archdiocese’s ads different from others that targeted Christmas shoppers.

“Ads promoting Christmastime sales are not expressing a view on Christmas any more than a McDonald’s ad expresses a view on the desirability of eating beef,” the court ruled.

The archdiocese had claimed its ad should have been approved by the transit system because an ad for yoga with the slogan “Muscle + Mantra” had been permitted, arguing that yoga has links to Buddhism and Hinduism.

But the court said that argument “ignores that [the] ad is not recognizably religious as the archdioceses ad plainly is,” suggesting that yoga is a secular activity.

The court also said the transit system accepted ads promoting the Salvation Army and a Christian radio station, noting that Metro’s focus wasn’t targeted at religious groups but religious messages.

A Metro spokesman said the transit agency was “pleased” with the court’s decision.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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