WASHINGTON (CN) – The Archdiocese of Washington is seeking an en banc review of a D.C. Circuit ruling that said a metropolitan transit authority was within its rights when it imposed a 2015 ban on religious ads.
In a filing late Thursday, the Archdiocese continues to claim the Washington Metropolitan Area Transit Authority violated the church’s first amendment rights when it refused to display Christmas-related ad that invited viewers to “find the perfect gift this season” with a URL that sends them to a web portal designed to find a local Catholic church.
“If Amazon or Macy’s had wanted to run an advertisement with the same text and graphics, or with reindeer instead of shepherds, WMATA would have readily accepted it,” the church says, claiming the denial of service amounted to viewpoint discrimination.
“If a less-obviously-religious group sought to advertise operating hours or promote charitable giving, WMATA would have allowed it,” the Archdiocese says.
In July, a three-judge D.C. Circuit panel denied the church’s request for injunctive relief.
U.S. Circuit Judge Judith Rogers, a Clinton appointee, cited the U.S. Supreme Court’s ruling in Lehman v. Shaker Heights, in which the court found city bus systems are not public forums because they are designed mainly for public transit and not as public spaces where such messaging would have the same level of constitutional protection.
“The Archdiocese’s position would eliminate the government’s prerogative to exclude religion as a subject matter in any non-public forum,” Rogers wrote. “Not only is this position contrary to the Supreme Court’s recognition that governments retain the prerogative to exclude religion as a subject matter … it would also undermine the forum doctrine because the Archdiocese offers no principled reason for excepting religion from the general proposition that governments may exclude subjects in their non-public forums.”
Lehman has been the gold standard for upholding similar advocacy or religious-based ad denials from cities ranging from San Francisco to New York, however another challenge against DC’s transit ban was revived earlier this month.
Citing a June decision by the U.S. Supreme Court in the case Minnesota Voters Alliance v. Mansky, the American Freedom Defense Initiative convinced a DC Circuit court to rehear their 2015 challenge after the transit system denied their ad of a Muslim man threatening the viewer with a knife under the words “you can’t draw me!”
Mansky overturned bans on political garb in polling stations, and the anti-Islam group successfully argued the same standard should apply to city bus ads.
“There is no question the moratorium and the guidelines sweep out far more than just AFDI’s advertisements,” U.S. Circuit Judge Douglas Ginsburg wrote. “If WMATA wished to keep out these particular advertisements, then it could have banned, as one example, advertisements ‘with a demonstrated link to violence,’ which would have sufficed given the events in Garland, Texas. That WMATA put in place a much broader ban, even though it resulted in a larger potential loss of revenue, strongly suggests it was not discriminating against the views of AFDI.”
The Archdiocese of Washington did not immediately respond to a request for comment. A representative of the Washington Metropolitan Area Transit Authority declined to comment.