Court Rules in Favor of Metro’s Ban on Religious Advertising

On July 31, the US Court of Appeals for the DC Circuit handed down its decision in Archdiocese of Washington v. WMATA, ruling that DC’s Metro transit system can prohibit religious advertising in its stations and on its buses and trains. The case arose following Metro’s rejection last fall of the Archdiocese of Washington’s Christmas advertisement depicting the biblical Magi, after which the Archdiocese filed suit challenging Metro’s 2015 prohibition of “issue-oriented advertisements,” including ads that “promote or oppose a religion, religious practice, or belief.” The DC Circuit rejected the Archdiocese’s argument that this prohibition violated the First Amendment and the Religious Freedom Restoration Act on the basis that Metro’s ad space constitutes a “non-public forum”—historically different in purpose from places of publication “congregation and discussion” likes parks and sidewalks—and that Metro’s ad guidelines are “viewpoint neutral.” In the lead-up to the decision, the US Depart-ment of Justice filed an amicus curiae brief supporting the Archdiocese against Metro’s “viewpoint discrimination” and now-Supreme Court Justice Brett Kavanaugh heard oral arguments in the case, referring to the Metro’s ad guidelines as “pure discrimination.” Justice Kavanaugh did not participate in the decision, however, due to the nomination process ongoing at the time.

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