WASHINGTON — A federal appeals court has ordered an expedited appeal in the Catholic Archdiocese of Washington’s attempt to force Metro to put Christmas-season ads evoking the Three Wise Men on the sides of buses across the region.
The ad was rejected by a panel of two Metro attorneys and a Metro marketing executive after they found the ads — that point to a website declaring “Jesus is the perfect gift” — clearly violated Metro’s stated ban on religion-related ads that has been in place since 2015. The church hopes to get that ban overturned.
The U.S. Court of Appeals for the District of Columbia Circuit ordered all briefs be submitted by noon Monday, which could allow for a decision early next week.
Last Friday, a lower court denied the church’s request to force Metro to carry the ads. The lawsuit had argued that Metro’s policies violate the First Amendment and other religious or free speech protections.
The archdiocese moved Tuesday for an emergency injunction from the appeals court and an expedited hearing on the underlying issues in the appeal based on claims that Metro’s ad policies discriminate against certain viewpoints. The church argued that ads for holiday gifts at stores show a preference for the “secular half” of Christmas.
In a response to the appeal the archdiocese filed in the appeals court Friday afternoon, Metro argued that the District Court judge correctly found that Metro’s restrictions on religious ads are constitutional since they are evenly applied to ads that both promote and oppose religion.
The archdiocese “has not established anything close to a likelihood of success, much less the virtual certainty of success that it must show to justify the extraordinary relief it demands,” the motion opposing an injunction said.
Both Metro and the Archdiocese have well-known lawyers listed on their filings in the case. For the Archdiocese, George W. Bush administration Solicitor General Paul Clement is on the case. For Metro, Obama administration Solicitor General Don Verrilli signed Friday’s motion.
Until 2015, Metro allowed all kinds of advertisements in the system.
That changed when Metro wanted to block an ad featuring a cartoon of the Prophet Muhammad that police worried would spark security concerns.
The Metro Board set a series of new rules restricting “issue-oriented” ads to limit complaints, bad publicity, security concerns, vandalism of ads and extensive ad-by-ad administrative reviews.
“WMATA’s own experience — and the record evidence — demonstrates that the cost of allowing such advertisements are outweighed by its administrative, security, and vandalism concerns,” Friday’s motion filed by Metro argued.
Other parts of those 2015 rules have faced legal challenges as being vague or overbroad, but the rules remain in place.
“If WMATA were forced to carry [this] advertisement, any decision not to carry advertisements criticizing Catholic teaching on sexuality or disparaging Islam or other faiths would immediately be vulnerable to a viewpoint discrimination claim, making it virtually impossible for WMATA to close its advertising space to divisive, demeaning or dangerous advertisements,” Metro’s lawyers wrote.
Since the church can spread its message in other ways, including the currently posted versions of the ad on D.C. bus shelters operated by the city, Metro argued its advertising policy does not impose any burden on the archdiocese at all.
“Conversely, the public has a strong interest in protecting the safety of its buses, trains, and stations, and ensuring a public transit environment that does not discomfit passengers and demoralize employees,” Metro argued.
The archdiocese is scheduled to file a final response Monday. Since the lawsuit requested that the ads be allowed to run before Christmas, a three-judge panel could issue a ruling on the injunction request at any time over the following few days or ask for further arguments.
