A central question before the U.S. Court of Appeals for the D.C. Circuit: Can Metro allow secular advertisers to promote Christmas shopping and charitable giving, but not the church?
Judge Brett M. Kavanaugh was unrelenting in questioning Metro’s lawyer, former solicitor general Donald B. Verrilli Jr., and stated unequivocally his view that the policy is “pure discrimination” in violation of the First Amendment.
Kavanaugh, who is on President Trump’s list of candidates for possible Supreme Court vacancies, made several references to recent high court opinions, including a 2017 ruling that sided with a Missouri church denied access to government grants meant for a secular purpose.
The two other judges on the panel — Judith W. Rogers and Robert L. Wilkins — pointed out that the archdiocese had acknowledged its ads were designed in part to promote religion, not just charitable giving.
In an exchange with the archdiocese’s attorney, Paul Clement, another former solicitor general, Wilkins suggested that Metro’s policy barring religion as a topic, just like politics, did not necessarily discriminate against a religious viewpoint.
Clement disagreed, saying Metro had singled out religion for “disfavored treatment.” He called the policy “rotten to its core.”
For decades, the transit system allowed a range of messages, including political satire and criticism of the Catholic Church. But in 2015, prompted by security concerns over anti-Muslim-themed ads, Metro banned issue-oriented messages as well as any related to religion or politics.
The decision limited ads to commercial products and services, which bring in more than $20 million for the regional transit system that relies on funding from the District, Maryland, Virginia and the federal government.
Verrilli, representing Metro, acknowledged the ads from the archdiocese were “benign.” But accepting those ads, he said, would force the transit system to accept other campaigns criticizing Islam, Judaism and Catholic bishops that could cause “tension and divisiveness” for riders and employees — and interfere with Metro’s ability to run the transit system.
Kavanaugh sounded skeptical, asking what would happen if Metro were forced to run a religious ad.
“The buses aren’t effective anymore?” he asked.
In court filings, Attorney General Jeff Sessions sided with the archdiocese. Metro’s policy banning ads that “promote . . . any religion, religious practice or belief” discriminates against religious organizations and is applied inconsistently, according to the Justice Department.
Ads for a new yoga studio pass muster, the filings state, but not for a new parish hall. Gifts from Macys.com are in, but not from the archdiocese’s Findtheperfectgift.org.
“The result is not anything like a clean distinction between commercial and non-commercial messages but a patchwork of exceptions,” according to the archdiocese.
Verrilli was pressed several times by the judges about why the archdiocese’s ads were excluded, but not a campaign featuring the Salvation Army’s signature red kettle and language about how the Protestant-affiliated charity can improve the lives of recipients.
“Charitable giving as part of a message of proselytizing is not permitted,” Verrilli said.
Trappist monks, for instance, could advertise their beer for the holidays, but not in connection with an invitation to worship and embrace Catholic principles.
Just before Christmas, a different three-judge panel of the D.C. Circuit upheld a lower court decision siding with Metro and keeping the ads off the sides of buses. That panel said the archdiocese’s argument that cited secular Christmas shopping advertisements was “grounded in pure hypothesis” and that it had not presented a “single example of a retail, commercial, or other non-religious advertisement on a WMATA bus that expresses the view that the holiday season should be celebrated in a secular or non-religious manner.”
The earlier appeals panel noted it was ruling only on the archdiocese’s request for a preliminary injunction, also at issue for the court on Monday, and that the broader litigation is still in the early stages.
If the court sides with the archdiocese, the Metro board could be forced to rewrite its rules. Jack Evans, the Metro board chairman and a D.C. Council member (D-Ward 2), has said the board has no interest in revisiting the policy.
Forcing Metro to make space for the archdiocese’s ad campaign “would open the door to a flood of political or policy viewpoints” and “upend standard operating procedures of transit authorities around the country,” according to Metro’s court filings.
Transit systems throughout the country have run afoul of the First Amendment for selectively banning certain ads, but the courts have generally upheld policies that limit certain categories of speech.