Democracy Dies in Darkness

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Metro is trampling on First Amendment rights

August 31, 2018 at 5:04 PM

Ashley McGuire is senior fellow with the Catholic Association. Andrea Picciotti-Bayer is legal adviser with the Catholic Association Foundation.

Everyone deserves a second chance. That includes the U.S. Court of Appeals for the District of Columbia Circuit, which has the chance to reconsider its ruling that the Washington Metropolitan Area Transit Authority can ban the Catholic Church from buying ads on buses.

The Archdiocese of Washington’s Lenten and Advent ads were part of the transportation landscape for years. “The Light is on for You” ads ran during Lent and welcomed Catholics to come to confession, no matter how long it had been. The “Find the Perfect Gift” ads invited all to find their way to church during the Advent and Christmas season — and to find a respite from the seasonal barrage of consumption that leaves many feeling hollow, inadequate and depressed. Both were simple messages of welcome to people in a culture in which so many feel estranged, detached and lonely.

Locals saw the ads as just another part of the diverse cultural landscape in the area: Nordstrom Rack is having a sale. Capital One Arena is hosting a job fair. The Catholic Church is inviting people to Christmas Mass. For years, WMATA accepted bus ads on all types of subjects. But WMATA changed its rules in 2015 and adopted a series of guidelines governing commercial advertising. Included is Guideline 12, which prohibits “advertisements that promote, or oppose any religion, religious practice or belief.”

Late last year, WMATA cited this new rule and refused to run the Archdiocese’s “Find the Perfect Gift” ad on the outside of its buses. The ad depicts a starry night and the silhouettes of three shepherds and sheep on a hill facing a bright shining star high in the sky. It also includes the campaign’s website, which offers a range of information including Mass times at parishes across the District and opportunities to be involved in charitable activities through Catholic Charities DC. The archdiocese’s requests for emergency relief in court were dismissed, and residents went last year without the church’s reminder of the “reason for the season.”

Metro would allow any kind of Christmas-themed advertising, as long as it did not originate from the religious faith that gave us Christmas in the first place. The chilling message to the public? Faith-based speech is not welcome in the public forum.

The move to confine religious expression to the four walls of a church is hardly new. If the past few Supreme Court terms are any indication, the rights of religious people in the public square are constantly being undermined. In 2017, the Supreme Court said it was “odious to our Constitution” when Missouri excluded a church from participating in a generally available grant program for resurfacing outdoor playgrounds. And just this year, the court chastised the Colorado Civil Rights Commission for its blatant hostility toward a Christian baker. WMATA’s Guideline 12 is just another variation on this theme. Excluding religion entirely from commercial ads on government-owned buses is little more than polite persecution.

But Catholics are not easily silenced when it comes to publicly professing their faith. The archdiocese retainedsuperstar appellate lawyer Paul Clement, who argued last spring before a panel of judges on the D.C. Circuit that the ban violated the First Amendment’s protections for religious exercise and free speech. Judge Brett M. Kavanaugh, who sat on the panel during oral argument but did not participate in the decision, called it “pure” rather than “polite” persecution. But the archdiocese lost and now wants the full Court of Appeals to consider the case.

Policies that muzzle religious speech chip away at the religious pluralism that makes America unique. Metro’s advertising guidelines aren’t just discriminatory, they also are unconstitutional. The D.C. Circuit has the chance to undo a policy that silences faith groups and remind the country what religious tolerance and freedom of expression really look like. That’s the kind of message that extends far beyond the side of a bus.

Read more:

David Cole: I represented the wedding cake couple. We lost a battle but won the war.

George F. Will: There will be more wedding cake cases

John Kerr: The loss of one right threatens all of our rights

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