If you live or work in the Washington, at one point or another, you’ve no doubt found yourself behind, next to or on a bus, staring at some giant advertisement for the latest gadget or the newest Netflix series. At some point in time, you probably also saw giant Advent or Lenten advertisements from the Archdiocese of Washington, but that was before the Washington Metropolitan Area Transport Authority unilaterally rejected those ads, summarily banning them from all buses and Metro cars.
The archdiocese returned to court to fight for the right to place its banned ads. WMATA rejected the archdiocese’s annual “Find the Perfect Gift” advent campaign because it was “religious” in nature. The ad depicts three shepherds walking alongside their sheep beneath a starry night sky and a website that includes local Mass times and information for directing one’s charitable giving of time and money.
The goal of the campaign is “to encourage individuals to seek spiritual gifts during this Christmas season, and to offer members of the community public service opportunities to serve our most vulnerable neighbors in the winter months when many material needs increase and become more challenging.” WMATA pointed to its commercial advertising guideline 12, which expressly bans “[a]dvertisements that promote or oppose any religion, religious practice or belief.”
WMATA had no problem, however, with ads depicting a more “for-profit,” if you will, take on the Christmas holiday. The archdiocese’s opening brief to the court of appeals observes: “WMATA does not deny, because it cannot deny, that it would allow advertising a mall’s opening hours, but not mass times; permit advertising a new yoga studio, but not a new parish hall; and run advertisements imploring shoppers to find the perfect gift at Macys.com, but not at findtheperfectgift.org.” The Becket Fund for Religious Liberty was a bit more direct, writing in its friend-of-the-court brief of the flat-out ban on religious messages: “WMATA’s candor is commendable, but its policy is unconstitutional.”
The archdiocese sued and lost in court in early December. Just a few days before Christmas, the D.C. Circuit Court of Appeals denied the archdiocese’s request for an emergency injunction pending appeal. As a result of these court decisions, the Lenten “The Light is On for You” ad campaign, an invitation to come to confession, was banned as well.
Representing the litigants were two former solicitor generals: Paul Clement (solicitor general during George W. Bush’s presidency) represents the archdiocese, and Don Verrilli (solicitor general in the Obama administration) represents WMATA. These two have faced off recently in two of the most important religion cases before the Supreme Court (here and here) invalidating Obamacare’s contraception mandate that would have required private and religious organizations to provide insurance coverage for contraception and abortifacients. In both cases, the victor was religious freedom, ably represented by Mr. Clement. The Justice Department’s friend-of-the-court brief in support of the archdiocese underscores the gravity of WMATA’s attack on the core First Amendment protections of the free exercise of religion and freedom of speech.
Unlike other parts of the world, Americans don’t often encounter instances of violent religious persecution. Instead, religious intolerance in the United States today often comes in the form of rules promoting secularism in the public square and relegating religion to the church pews on Sunday. Pope Francis has warned about the dangers of such “polite persecution.” WMATA’s guideline 12 prohibiting any message with a “religious” nature is a perfect example of such persecution. Banishing all ads with a religious significance from WMATA buses undermines the strength of American religious pluralism and, more important for the appeals court deciding this case, is patently unconstitutional.
Last year, for example, the Supreme Court in Trinity Lutheran forcefully stated that excluding groups from government programs simply because they are religious is “odious” to the Constitution. Similarly, the court has rejected three times — in Lamb’s Chapel, Good News Club and Rosenberger — blatant viewpoint discrimination against “religious” messages. Applying such strong precedent, it is clear that WMATA’s “no religious speech” policy is offensive to both the free exercise and free speech clauses of the First Amendment.
Judge Brett M. Kavanaugh, one of the three judges in the Metro ads case, didn’t mince words, calling the policy during oral arguments, “pure discrimination.”
Let’s hope in this round of titans clashing, religious freedom wins again.
Ashley McGuire is a senior fellow with the Catholic Association and the author of “Sex Scandal: The Drive to Abolish Male and Female.” Andrea Picciotti-Bayer is legal adviser for the Catholic Association Foundation.