United States Court of Appeals, District of Columbia Circuit
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
...