DC Circuit Order Means No Christmas Ads on Buses This Year

WASHINGTON (CN) – The D.C. Circuit on Wednesday denied the Archdiocese of Washington's request for an injunction while it appeals a federal judge's ruling that the Capitol’s regional transit authority does not have to display the church's Christmas advertisements on buses.

The Archdiocese of Washington, which is home to more than 620,000 Catholics in Washington and neighboring counties in Maryland, sued the Washington Metropolitan Area Transit Authority on Nov. 30, after the transit authority refused to post its Christmas ads on city buses.

The ads feature silhouettes of shepherds and sheep walking along a hill against a night sky with several white stars and one, larger gold star, evoking the story of the three wise men. The ads read "Find the perfect gift," and include a web address of the same name that displays mass schedules and religious Christmas traditions and information.

The archdiocese claims in the lawsuit that Metro's refusal to display the ads amounted to an unlawful discrimination based on viewpoint. The transit authority countered by saying its policy prohibits any religious holiday advertisements, though it does allow secular ads, according to the D.C. Circuit’s 4-page per curiam order issued Wednesday.

U.S. District Judge Amy Berman Jackson, an Obama nominee who sits on the U.S. District Court for the District of Columbia, ruled on Dec. 11 that the transit authority's rule was reasonable and that messages do not enjoy the same First Amendment protections when displayed on a public bus as they do when displayed in other places.

The archdiocese appealed and asked the D.C. Circuit to enjoin the order while the appeal is pending. The court denied the archdiocese's request, finding it did not give the court enough reason to think the archdiocese would succeed on the merits of the case.

"Appellant has failed to establish a substantial likelihood of success because, at least at this early prediscovery procedural stage, appellant's argument of discriminatory treatment is grounded in pure hypothesis," the order states. "Appellant has not come forward with a single example of a retail, commercial or other nonreligious advertisement on a WMATA bus that expresses the view that the holiday season should be celebrated in a secular or non-religious manner."

The order notes other advertisements the transit authority has posted, such as one for the Salvation Army that asked for donations to a seasonal fundraising campaign, did not explicitly endorse a religious message.

In addition, the circuit found the archdiocese did not show the transit authority's decision hindered its free exercise of religion.

"Although WMATA has declined one proposed advertisement, appellant has not demonstrated how, in the absence of viewpoint discrimination, that decision substantially burdens the appellant's ability to exercise its religion," the order states. [Emphasis in original.]

The order is clear that it is a preliminary decision and does not have any bearing on what will happen later in the case when the parties can fully brief the issues and develop a record. The court put in place an expedited briefing schedule for the case, with the archdiocese's first brief due on Jan. 12.

Ed McFadden, secretary of communications for the Archdiocese of Washington, said while the archdiocese is disappointed in the court's decision, it will continue litigating the case before the D.C. Circuit. The archdiocese hopes to be able to advertise on buses during the upcoming Lenten season, making the case about more than just Christmas ads.

"As our filings have indicated, we believe that this case goes to First Amendment freedoms of religion and expression and those freedoms don't adhere to a season or a year, so we'll continue our case moving forward," McFadden said by phone.

The Washington Metropolitan Area Transit Authority did not respond to a request for comment sent after business hours Wednesday.

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