Archdiocese of Washington v. Washington Metropolitan Area Transit Authority

          Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-02554)

         On Petition for Rehearing En Banc

          Before: Garland, Chief Judge; Henderson, Rogers, Tatel, Griffith, Srinivasan, Millett, Pillard, Wilkins, and Katsas, ^[*] Circuit Judges.

          ORDER

          PER CURIAM.

         Appellant's petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing, it is

         ORDERED that the petition be denied.

          Griffith, Circuit Judge, with whom Circuit Judge Katsas joins, dissenting from the denial of rehearing en banc:

         We ought to rehear this case en banc because the panel opinion conflicts with Supreme Court precedent on an issue of exceptional importance: the freedom to speak from a religious viewpoint. According to that precedent, the government in this case violated the First Amendment by prohibiting religious speakers from expressing religious viewpoints on topics that others were permitted to discuss.

         The Washington Metropolitan Area Transit Authority (WMATA) is a governmental entity that operates the Metrobus public transportation system. During last year's Christmas season, the Roman Catholic Archdiocese of Washington, D.C., sought to run the following ad on the exterior of Metrobuses:

         (Image Omitted)

         The proposed ad was part of the Archdiocese's "Find the Perfect Gift" campaign, whose purpose was "to share a simple message of hope, welcoming all to Christmas Mass. or in joining in public service to help the most vulnerable in our community during the liturgical season of Advent." Decl. of Edward McFadden, Sec'y of Communications, Archdiocese of Wash., ¶ 3 (Nov. 27, 2017). The campaign "invite[d] the public to consider the spiritual meaning of Christmas, to consider celebrating Advent/Christmas by going to Mass. at one of our parishes and/or joining in one of our many outreach programs that care for the most vulnerable and poor during Advent and beyond." Decl. of Susan Timoney, Sec'y for Pastoral Ministry & Social Concerns, Archdiocese of Wash., ¶ 6 (Nov. 27, 2017). To that end, the proposed ad included the address for the campaign's website, which provided schedules for local Masses and described many opportunities for charitable service. Archdiocese of Wash. v. WMATA, 281 F.Supp.3d 88, 97 (D.D.C. 2017).

         WMATA rejected the ad, explaining to the Archdiocese that the ad violated a policy adopted by its Board of Directors prohibiting "[a]dvertisements that promote or oppose any religion, religious practice or belief." J.A. 115, 200. According to WMATA, the ad ran afoul of that ban "because it depicts a religious scene and thus seeks to promote religion." J.A. 115. During this litigation, WMATA further explained that its decision was based not on the ad alone, but also on the website referenced in the ad, which "contained substantial content promoting the Catholic Church," including "a link to 'Parish Resources, '" "a way to 'Order Holy Cards, '" and "videos and 'daily reflections' of a religious nature." Decl. of Lynn Bowersox, WMATA Assistant Gen. Manager for Customer Service, Communications & Marketing, ¶¶ 19-20 (Dec. 1, 2017).

         When the Archdiocese challenged WMATA's decision, the district court upheld the decision, as did a panel of this court on appeal. Archdiocese of Wash. v. WMATA, 897 F.3d 314, 320-21, 335 (D.C. Cir. 2018).^[1] The panel found that advertising space on a Metrobus is a non-public forum and held that WMATA's policy was permissible under the First Amendment. Id. at 322-23, 335.

         Supreme Court precedent, however, instructs otherwise. In interpreting the First Amendment, the Court has long held that the government may place reasonable restrictions on the subjects discussed in a non-public forum, but the government may not impose restrictions based on a speaker's viewpoint. See Minnesota Voters All. v. Mansky, 138 S.Ct. 1876, 1885 (2018); Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 806 (1985). In the context of religious speech, the Supreme Court has three times considered restrictions indistinguishable from the WMATA policy challenged here. In all three cases, the government argued, as WMATA does here, that the restrictions were permissible because they prohibited all views on a discrete subject: religion. In all three cases, the Supreme Court rejected that argument because the restrictions did more than attempt to ban the discussion of religion; they also barred the expression of religious viewpoints on topics that were otherwise permitted to be ...