Justice Department Joins Fight Over Religious Ads on Buses

WASHINGTON (CN) – The Department of Justice Thursday filed an amicus brief supporting the Archdiocese of Washington in its attempt to get a Christmas-themed advertisement on the side of D.C. metro buses.

“When the government creates a forum for expressive activity — regardless whether it opens that forum to all members of the public or only some — it may not restrict a speaker’s access to the forum based solely on the speaker’s point of view,” the brief signed by Nicolas Riley of the DOJ’s civil appellate staff says.

The ads that the archdiocese wanted to run this past Christmas season 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 a lawsuit  filed Nov. 3 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.

That policy is similar to those in other large cities including New York and Chicago and smaller towns like Richmond, Virginia, and Fresno, Calif.

While DC hadn’t faced any issues before creating the policy, New York implemented the policy after a controversial anti-Muslim ad by the conservative activist group American Freedom Defense Initiative ran and lead to complaints. Washington Metropolitan Area Transit Authority’s policy specifically denies ads which involve religious or political messages or advocate for a cause.

Limits on bus advertising date back more than 40 years when the U.S. Supreme Court sided with the City of Shaker Heights and found bus advertising is not the same as traditional speech and therefore, the speech present on buses and bus facilities can be limited.

In December, U.S. District Judge Amy Berman Jackson ruled against the archdiocese,  relying largely on the Shaker Heights case.

“The Court ruled that advertising space on a public bus was not a public forum because the city had “consciously . . …. limited access to its transit system advertising space in order to minimize chances of abuse, [and] the appearance of favoritism,” Jackson wrote.

Jackson said WMATA’s concerns about the risks posted by issue-oriented ads were reasonable, and it helped the transit system ensure “safe and reliable transportation” while not violating the first amendment.

The D.C. Circuit later denied the archdiocese’s request for an injunction while it appeals Jackson’s ruling.

The DOJ’s filing of an amicus brief in the case is in line with Attorney General Jeff Session’s avowed commitment to “religious freedom.”

“Except in the narrowest of circumstances, no one should be forced to choose between living out his or her faith and complying with the law,” the attorney general wrote in guidance distributed to federal agencies in October. “To the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government action, including employment, contracting and programming.”

A representative of the archdiocese did not immediately respond to requests for comment.

Sherri Ly, a spokeswoman for the transit authority said “we have no comment” on the Justice Department filing.

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