Archdiocese of Wash. v. Wash. Metro. Area Transit Auth.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 26, 2018 Decided July 31, 2018
No. 17-7171
ARCHDIOCESE OF WASHINGTON, DONALD CARDINAL WUERL,
A ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON, A
CORPORATION SOLE,
APPELLANT
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY
AND PAUL J. WIEDEFELD, IN HIS OFFICIAL CAPACITY AS
GENERAL MANAGER OF THE WASHINGTON METROPOLITAN
AREA TRANSIT AUTHORITY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-02554)
Paul D. Clement argued the cause for appellant. With him
on the briefs were Michael F. Williams and Kasdin M. Mitchell.
John M. Gore, Acting Assistant Attorney General, U.S.
Department of Justice, Matthew J. Glover, Counsel to the
Assistant Attorney General, Matthew M. Collette and Nicholas
Y. Riley, Attorneys, were on the brief for amicus curiae United
States in support of appellant.
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Shannen W. Coffin was on the brief for amici curiae Ethics
and Public Policy Center and First Liberty Institute in support
of appellant.
Jeffrey M. Johnson and Lisa M. Kaas were on the brief for
amicus curiae The Franciscan Monastery USA, Inc. in support
of appellant.
Ryan A. Shores was on the brief for amici curiae Becket
Fund for Religious Liberty, et al. in support of appellant.
Donald B. Verrilli Jr. argued the cause for appellees. With
him on the brief were Chad I. Golder, Jonathan Meltzer,
Patricia Y. Lee, and Rex S. Heinke. Anthony T. Pierce entered
an appearance.
Before: ROGERS, KAVANAUGH and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
Concurring opinion filed by Circuit Judge WILKINS.
ROGERS, Circuit Judge: The Washington Metropolitan
Transit Authority (“WMATA”) was established by compact
between the State of Maryland, the Commonwealth of
Virginia, and the District of Columbia to provide safe and
reliable transportation services. See Pub. L. No. 89-774, 80
Stat. 1324 (1966). Like other transit authorities, it sells
commercial advertising space to defray the costs of its services,
and for years it had accepted ads on all types of subjects. In

Circuit Judge Kavanaugh was a member of the panel at the
time the case was argued but did not participate in this opinion.
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2015 WMATA closed its advertising space to issue-oriented
ads, including political, religious, and advocacy ads. This
decision followed extended complaints from riders,
community groups, business interests, and its employees,
resulting in regional and federal concerns about the safety and
security of its transportation services, vandalism of its property,
and a time-intensive administrative burden reviewing proposed
ads and responding to complaints about ads.
Since Lehman v. City of Shaker Heights, 418 U.S. 298
(1974), transit authorities have been permitted to accept only
commercial and public service oriented advertisements
because “a streetcar or bus is plainly not a park or sidewalk or
other meeting place for discussion,” but rather “is only a way
to get to work or back home.” Id. at 306 (Douglas, J.,
concurring). Under the Supreme Court’s forum doctrine,
WMATA, as a non-public forum, may restrict its advertising
“[a]ccess . . . as long as the restrictions are ‘reasonable and [are]
not an effort to suppress expression merely because public
officials oppose the speaker’s view.’” Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985)
(quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 46 (1983)). Based on experience that its approach
to advertising was interfering with its ability to provide safe
and reliable transportation service, WMATA adopted
Guidelines Governing Commercial Advertising, employing
broad subject-matter prohibitions in order to maintain
viewpoint neutrality and avoid ad hoc bureaucratic
determinations about which ads are benign and which are not.
Guideline 12 states: “Advertisements that promote or oppose
any religion, religious practice or belief are prohibited.”
The Archdiocese of Washington contends that Guideline
12 violates the First Amendment and the Religious Freedom
Restoration Act (“RFRA”) and seeks a mandatory preliminary
4
injunction that would require WMATA to place an avowedly
religious ad on the exteriors of its buses. The Archdiocese has
not shown, however, that WMATA is impermissibly
suppressing its viewpoint on an otherwise permitted subject,
and its claim of discriminatory treatment is based on
hypothesis. Following Rosenberger v. Rector & Visitors of the
University of Virginia, 515 U.S. 819, 831 (1995), WMATA
may exclude religion as a subject matter from its advertising
space. Notably, there is no principled limit to the
Archdiocese’s conflation of subject-matter restrictions with
viewpoint-based restrictions as concerns religion. Were the
Archdiocese to prevail, WMATA (and other transit systems)
would have to accept all types of advertisements to maintain
viewpoint neutrality, including ads criticizing and disparaging
religion and religious tenets or practices. Because the
Archdiocese has not demonstrated a likelihood of prevailing on
the merits or that the equities weigh favorably, it has not met
the demanding standard for a mandatory preliminary
injunction. See Dorfmann v. Boozer, 414 F.2d 1168, 1173
(D.C. Cir. 1969).
I.
Until 2015, WMATA had accepted most issue-oriented
advertisements, including political, religious, and advocacy
ads. Beginning in 2010, WMATA began to reconsider its
approach as a result of near-monthly complaints from its
employees, riders, elected officials, and community and
business leaders about its advertisements. See Decl. of Lynn
M. Bowersox, WMATA Ass’t Gen. Mgr., Cust. Serv., Comms.
& Mktg., in support of Defs’ Opp. to Mot. for TRO and Prel.
Inj., ¶¶ 4–5 & Ex. A (Dec. 1, 2017) (“Bowersox Decl.”). The
complaints spanned objections to ads that were critical of the
Catholic Church’s position against use of condoms, to ads by
People for the Ethical Treatment of Animals with graphic
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images of animal cruelty, to ads opposing discrimination based
on sexual orientation. The condoms ad, for example,
“generated hundreds of angry phone calls and letters and
generated the second-largest negative response to any ad[] ever
run in WMATA advertising space.” Id. ¶ 25. An “anti-Islam
ad . . . was also a factor in WMATA’s decision to change its
advertising space to a nonpublic forum.” Id. ¶¶ 11, 26. The
Metro Transit Police Department and the United States
Department of Homeland Security “feared that certain ads
would, due to world events, incite individuals to violence on
the system and harm WMATA employees and customers.” Id.
¶ 11. Specifically, they referred to events following “a contest
to create a cartoon depiction of the Prophet Muhammad.” Id.
A cartoon that was submitted as an ad to WMATA “raised
concerns, because some Muslims consider drawing the Prophet
Mohammed so offensive that they have reacted violently to
such depictions in the past.” Id. (differing spellings in
original). “WMATA was aware that two gunmen were killed
after they attempted to attack the building where the contest . .
. was being held.” Id. Additionally, a survey showed that
“98% of the public was familiar with the types of ads found on
buses, in trains, and in stations,” that “58% opposed issue-
oriented ads,” and that “46% were extremely opposed to . . .
issue-oriented ads.” Id. ¶ 14.
On November 19, 2015, the WMATA Board of Directors,
with representatives from Maryland, Virginia, and the District
of Columbia, decided to narrow the subjects that it would
accept in WMATA advertising space. Upon resolving that
WMATA’s advertising space is closed “to issue-oriented ads,
including political, religious and advocacy ads,” Res. 2015-55,
the Board adopted Guidelines Governing Commercial
Advertising, (Nov. 19, 2015) (eff. 30 days after adoption),
including Guideline 12 prohibiting “[a]dvertisements that
promote or oppose any religion, religious practice or belief.”
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The Board concluded that any economic benefit derived from
issue-oriented advertising was outweighed by four
considerations: (1) complaints from its employees, community
opposition and outcry, and adverse publicity for WMATA; (2)
security concerns from the Metro Transit Police Department
and the United States Department of Homeland Security; (3)
vandalism of WMATA property; and (4) the administrative
burden associated with the time-intensive process of reviewing
proposed ads and responding to complaints about ads.
Bowersox Decl. ¶¶ 9–13. Since the Guidelines took effect,
WMATA has regularly rejected ads as non-compliant with its
Guidelines, including Guideline 12. See id. ¶ 17 & Ex. C.
The “Find the Perfect Gift” ad that the Archdiocese seeks
to have WMATA place on the exterior of its buses depicts a
starry night and the silhouettes of three shepherds and sheep on
a hill facing a bright shining star high in the sky, along with the
words “Find the Perfect Gift.” The ad includes a web address
and a social media hashtag. Its website, although still under
construction when the ad was submitted to WMATA,
“contained substantial content promoting the Catholic
Church,” including “a link to ‘Parish Resources,’ . . . a way to
‘Order Holy Cards,’ and . . . religious videos and ‘daily
reflections’ of a religious nature.” Id. ¶ 19. The Archdiocese
explains that “[t]he ‘Find the Perfect Gift’ campaign is an
important part of [its] evangelization efforts,” Decl. of Dr.
Susan Timoney, S.T.D., Sec’y for Pastoral Ministry and Social
Concerns, Archdiocese of Wash., ¶ 4 (Nov. 27, 2017)
(“Timoney Decl.”), “welcoming all to Christmas Mass or . . .
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 Commns., Archdiocese of Wash.,
serving Cardinal Donald Woerl, ¶ 3 (Nov. 27, 2017)
(“McFadden Decl.”). Dr. Timoney advises: “It is critically
important for the goals of the . . . campaign that the
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Archdiocese begin spreading its message before the Advent
season” because “[t]he Roman Catholic Church teaches” that
in “sharing in the long preparation for the Savior’s arrival with
the first Christmas, we renew our ardent desire for Christ’s
second coming.” Timoney Decl. ¶ 5.
When the Archdiocese sought to purchase space for the
“Find the Perfect Gift” ad on the exterior of Metrobuses,
WMATA declined on the ground that it was impermissible
under Guideline 12 “because it depicts a religious scene and
thus seeks to promote religion.” McFadden Decl. ¶¶ 7, 12, 16
(internal quotations omitted). On November 28, 2017, the
Archdiocese filed a complaint for declaratory and injunctive
relief under the First Amendment’s Free Speech and Free
Exercise Clauses, RFRA, and the Fifth Amendment’s
guarantees of due process and equal protection. The
Archdiocese sought a declaration that Guideline 12 was
unconstitutional under the First and Fifth Amendments and
violated RFRA, and an injunction preventing WMATA from
enforcing Guideline 12 to reject the Archdiocese’s ad.
The district court denied the Archdiocese’s motion for a
temporary restraining order (“TRO”) and preliminary
injunction. 281 F. Supp. 3d 88 (D.D.C. 2017). Concluding the
Archdiocese was not likely to succeed on the merits, the court
ruled that Guideline 12 was consistent with the Free Speech
Clause as a viewpoint neutral and reasonable regulation in a
non-public forum, and that Guideline 12 did not burden the
Archdiocese’s right to free exercise as a neutral and generally
applicable regulation not singling out religious activity for
suppression. 281 F. Supp. 3d at 102–05, 107–14. The court
also rejected the Archdiocese’s arguments based on RFRA and
the Fifth Amendment’s Due Process and Equal Protection
Clauses. Id. at 115–16. The court further concluded that the
three other preliminary injunction factors did not weigh in
8
favor of granting injunctive relief, including because the
Archdiocese’s “irreparable harm argument rises and falls with
its merits arguments.” Id. at 116.
The Archdiocese appealed and filed an emergency motion
for an injunction pending appeal, “preventing WMATA from
denying the Archdiocese’s ‘Find the Perfect Gift’ campaign,”
and an expedited appeal on the merits. This court denied the
motion for a mandatory injunction pending appeal on
December 20, 2017, but set an expedited briefing schedule.
After initially maintaining the case is moot because Advent has
passed, the government desisted once the Archdiocese
indicated it “specifically intend[s] to ask to run this exact ad in
the next Advent season,” Oral Arg. Tr. 27 (Mar. 26, 2018)
(counsel for WMATA).
II.
A preliminary injunction is an “extraordinary remedy,”
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165
(2010) (citation omitted). The moving party must make a
“clear showing that four factors, taken together, warrant relief:
likely success on the merits, likely irreparable harm in the
absence of preliminary relief, a balance of the equities in its
favor, and accord with the public interest.” League of Women
Voters v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (citations
omitted). This court “reviews the district court’s legal
conclusions as to each of the four factors de novo, and its
weighing of them for abuse of discretion.” Id. at 6–7 (citing
Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291
(D.C. Cir. 2009)).
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A.
On appeal, the Archdiocese contends that Guideline 12
“unconstitutionally abridges . . . free speech rights by
suppressing religious viewpoints on subjects that WMATA
otherwise allows on bus exteriors.” Appellant’s Br. 13
(emphasis in original). The Archdiocese also contends that
WMATA enforces Guideline 12 “arbitrarily by permitting
some religious speech while excluding the Archdiocese’s,”
which “violates the First Amendment’s free speech guarantee.”
Id. at 14. Further, the Archdiocese contends that Guideline 12
“raises problems under the Religion Clauses and RFRA”
because “WMATA’s exclusion of all religious speech from bus
exteriors and its interference with the Archdiocese’s religious
exercise violates the Free Exercise Clause and RFRA, and
WMATA’s arbitrary enforcement puts it in the position of a
religious censor . . . favor[ing] some religions over others in
violation of the Establishment Clause (and equal protection
principles).” Id.
1. To determine whether the Archdiocese has shown
that it is likely to prevail on the merits requires a threshold
determination of the nature of the forum at issue. The Supreme
Court recently reaffirmed its “‘forum-based’ approach for
assessing restrictions that the government seeks to place on the
use of its property.” Minn. Voters Alliance v. Mansky, 138 S.
Ct. 1876, 1885 (2018) (quoting Int’l Soc. For Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)). The
Supreme Court has long recognized that “[e]ven protected
speech is not equally permissible in all places and at all times”
and that the government is not “require[d] . . . freely to grant
access to all who wish to exercise their right to free speech on
every type of [g]overnment property without regard to the
nature of the property or to the disruption that might be caused
by the speaker’s activities.” Cornelius, 473 U.S. at 799–800.
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Under the forum doctrine, the Supreme Court
acknowledges that “[t]he existence of a right of access to public
property and the standard by which limitations upon such right
must be evaluated differ depending on the character of the
property at issue.” Perry Educ. Ass’n, 460 U.S. at 44. The
Court identified three categories of property. First, public
forums are “places which by long tradition or by government
fiat have been devoted to assembly and debate,” such as
sidewalks or parks, where “the rights of the state to limit
expressive activity are sharply circumscribed.” Id. at 45. To
enforce a content-based exclusion in a public forum, the
regulation must satisfy strict scrutiny. Id. (citing Carey v.
Brown, 447 U.S. 455, 461 (1980)). Second, designated public
forums are those in which the government has “opened” public
property “as a place for expressive activity.” Id. “Although
[the government] is not required to indefinitely retain the open
character of the facility, as long as it does so it is bound by the
same standards as apply in a traditional public forum.” Id. at
46. Third, a non-public forum is public property which is not
by tradition or designation a public forum, and “the
[government] may reserve the forum for its intended purposes,
communicative or otherwise, as long as the regulation on
speech is reasonable and not an effort to suppress expression
merely because public officials oppose the speaker’s view.” Id.
(citing U.S. Postal Serv. v. Council of Greenburgh Civic
Ass’ns, 453 U.S. 114, 131 n.7 (1981)). In this third category,
policy or practice may establish that the property is not held
open to the public for general debate because “the
[government], no less than a private owner of property, has
power to preserve the property under its control for the use to
which it is lawfully dedicated.” Id. (quoting U.S. Postal Serv.,
453 U.S. at 129; citing Greer v. Spock, 424 U.S. 828, 836
(1976); Adderley v. Florida, 385 U.S. 39, 48 (1966)).
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The Archdiocese fails to show that the advertising space
on WMATA’s buses is not properly treated as a non-public
forum. Indeed, the Archdiocese conceded as much in the
district court, affirming in response to questions that it was
“conceding at this point that it’s not a public forum” and that
the district court “[did not] have to address that [contrary]
argument anymore.” 2017 Motion Hg. Tr. at 4–5. The
Archdiocese further stipulated that the legal standard for non-
public forums requires there be “no viewpoint discrimination
and the restrictions that are applied are reasonable in the
context and based on the purposes of the forum,” id. at 3–4, the
standard to which its briefs to this court have conformed. Its
attempt to backtrack now comes too late, see United States v.
Olano, 507 U.S. 725, 733 (1993); Singleton v. Wulff, 428 U.S.
106, 120 (1976), because other than pointing to the emergency
nature of the TRO proceeding, the Archdiocese offers no
explanation why this court should depart from the usual
practice of deeming concessions in the district court waived for
the purposes of appeal, see, e.g., Flynn v. Comm’r, 269 F.3d
1064, 1068–69 (D.C. Cir. 2001).
Even absent the Archdiocese’s concession, it is clear that
WMATA’s advertising space is a non-public forum. Having
treated its advertising space as an open forum, WMATA’s
Board of Directors in 2015 made a considered decision based
on experience to “close[]” its advertising space to specific
subjects. Res. 2015-55. The Supreme Court’s has recognized
that “a state is not required to indefinitely retain the open
character of [a designated public forum],” Perry Educ. Ass’n,
460 U.S. at 46, and that it may instead choose to convert a
designated public forum back into a non-public forum because
“the government retains the choice” regarding the status of its
forum, Arkansas Educ. Television Comm’n v. Forbes, 523 U.S.
666, 680 (1998); see Cornelius, 473 U.S. at 802, 803–04;
Lehman, 418 U.S. at 304 (plurality opinion). Previously, this
12
court concluded that by accepting political advertising
WMATA had designated its subway stations public forums.
Lebron v. WMATA, 749 F.2d 893, 896 (D.C. Cir. 1984); see
also Am. Freedom Def. Initiative v. MTA, 109 F. Supp. 3d 626,
628 (S.D.N.Y. 2015), aff’d, 815 F.3d 105 (2d Cir. 2016).
Having plainly evinced its intent in 2015 to close WMATA’s
advertising space to certain subjects, the Board of Directors
converted that space into a non-public forum in the manner
contemplated by the Supreme Court. See Cornelius, 473 U.S.
at 803–04.
Treatment of WMATA’s advertising space as a non-public
forum is consistent with longstanding Supreme Court
precedent. In Lehman, the First Amendment challenge arose
with respect to prohibiting political advertising on city buses.
The Court held that advertising space on public transit was
properly treated as a non-public forum because a “bus is plainly
not a park or sidewalk or other meeting place for discussion”
but rather “only a way to get to work or back home.” Lehman,
418 U.S. at 306 (Douglas, J., concurring); see also Cornelius,
473 U.S. at 803–04. The Court drew on its precedent
distinguishing between “traditional settings where First
Amendment values inalterably prevail,” and “commercial
venture[s],” where “[p]urveyors of goods and services saleable
in commerce may purchase advertising space.” Lehman, 418
U.S. at 302–04 (plurality opinion) (internal quotation marks
and citation omitted); id. at 305–06. (Douglas, J. concurring).
In view of concerns about jeopardizing advertising revenues
and “lurking doubts about favoritism, and sticky administrative
problems [that] might arise in parceling out limited space,” the
Court concluded “the managerial decision to limit car card
space to innocuous and less controversial commercial and
service oriented advertising does not rise to the dignity of a
First Amendment violation.” Id. at 304 (plurality opinion); see
also id. at 305–06 (Douglas, J., concurring). A contrary
13
conclusion would mean “display cases in public hospitals,
libraries, office buildings, military compounds, and other
public facilities immediately would become Hyde Parks open
to every would-be pamphleteer and politician.” Id. at 304
(plurality opinion).
The Archdiocese attempts to distinguish WMATA’s bus
exteriors from the public transit advertising space in Lehman
because they “reach[] an audience in a quintessential public
forum.” Appellant’s Br. 17 n.1. But it points to no precedent
that visibility from a quintessential public forum, like a park or
street, renders a non-public forum public or alters its status for
the purposes of First Amendment analysis; were that the law,
then the mere visibility of the Supreme Court plaza from the
sidewalk, or of a military installation to passersby, might
convey a constitutional obligation to host expression. The
Archdiocese also attempts to distinguish Lehman because bus
exteriors are “unlike the interiors with their distinct captive
audience problems addressed in [Lehman].” Id. The rationale
in Lehman was not so limited. The Supreme Court concluded
that a city does not “by selling advertising space . . . turn[] its
buses into free speech forums.” Lehman, 418 U.S. at 305–06
(Douglas, J., concurring); cf. Marks v. United States, 430 U.S.
188, 193 (1977) (citation omitted).
The Supreme Court, in citing Lehman with approval in
Cornelius, 473 U.S. at 803–04, underscored that transit
systems, unlike spaces like parks and sidewalks that have
historically been used for congregation and discussion, have a
utilitarian purpose that governments are entitled to maintain, at
least where they have provided a non-speech-suppressive
rationale for regulation. City buses, by contrast, enjoy no
historical tradition like parks and sidewalks because transit was
a private enterprise in most American cities until the second
half of the twentieth century. See George M. Smerk, Urban
14
Mass Transportation: From Private to Public to Privatization,
26 TRANSPORTATION J. 83, 83–84 (1986); Jay Young,
Infrastructure: Mass Transit in 19th- and 20th-Century Urban
America, OXFORD RESEARCH ENCYCLOPEDIA OF AMERICAN
HISTORY, 5 & n. 30 (Mar. 2015) (citing DAVID E. NYE,
ELECTRIFYING AMERICA: SOCIAL MEANINGS OF A NEW
TECHNOLOGY, 1880-1940 at 90–91 (Cambridge: MIT Press
1992)).
2. WMATA’s decision in Guideline 12 was
consonant with recognition by the Supreme Court that the
government has wide latitude to restrict subject matters —
including those of great First Amendment salience, see Minn.
Voters Alliance, 138 S. Ct. at 1885–86 (collecting citations on
political speech); Cornelius, 473 U.S. 788 (political speech);
Rosenberger, 515 U.S. at 831 (religious speech) — in a non-
public forum as long as it maintains viewpoint neutrality and
acts reasonably. Far from undermining First Amendment
values, the Court has understood the latitude afforded the
government in regulating a non-public forum to promote these
values. The non-public forum preserves some speech where
there is no constitutional obligation to do so. The Court
explained:
The Cornelius distinction between general and
selective access furthers First Amendment interests.
By recognizing the distinction, we encourage the
government to open its property to some expressive
activity in cases where, if faced with an all-or-nothing
choice, it might not open the property at all. That this
distinction turns on governmental intent does not
render it unprotective of speech. Rather, it reflects the
reality that, with the exception of traditional public
fora, the government retains the choice of whether to
15
designate its property as a forum for specified classes
of speakers.
Arkansas Educ. Television Comm’n, 523 U.S. at 680. The
government need not be forced into the choice between “the
prospect of cacophony, on the one hand, and First Amendment
liability, on the other.” Id. at 681.
In addition to preserving speech, the non-public forum
doctrine, by requiring that the government prospectively and
categorically set subject matter regulations, see Rosenberger,
515 U.S. at 829, preserves the government’s ability to manage
potentially sensitive non-public forums while cabining its
discretion to censor messages it finds more or less
objectionable. This constraint is especially important in the
context of religious speech, given our cultural and
constitutional commitment to religious liberty and the historic
role of religiously motivated dissent from government
orthodoxy in the development of free-speech rights. See, e.g.,
W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
Because Guideline 12 prohibits religious and anti-religious ads
in clear, broad categories, bureaucrats are not called upon to
decide whether the ad criticizing the Catholic Church’s
position on condom usage, or the anti-Islam Muhammad ad, or
the Find a Perfect Gift campaign ad is the more “offensive,” or
otherwise censor religious messages. WMATA’s subject-
based prohibition abides by the Supreme Court’s recognition
that “[i]f there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe
what shall be orthodox in politics, nationalism, religion, or
other matters of opinion.” Barnette, 319 U.S. at 642; see
Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm’n,
138 S. Ct. 1719, 1731 (2018).
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The Archdiocese’s position would eliminate the
government’s prerogative to exclude religion as a subject
matter in any non-public forum. It contends Supreme Court
precedent prohibits governments from banning religion as a
subject matter, and that Guideline 12 is unconstitutional for that
reason. Not only is this position contrary to the Supreme
Court’s recognition that governments retain the prerogative to
exclude religion as a subject matter, see Rosenberger, 515 U.S.
at 831, it would also undermine the forum doctrine because the
Archdiocese offers no principled reason for excepting religion
from the general proposition that governments may exclude
subjects in their non-public forums. Although religious speech
might be an exception either because it is highly valuable or
because it receives specific protection in the First Amendment,
the same can be said of political speech on which the Supreme
Court has upheld bans against constitutional challenges. See,
e.g., Arkansas Educ. Television Comm’n, 523 U.S. at 669;
Cornelius 473 U.S. 788. The Archdiocese’s position could
have sweeping implications for what speech a government may
be compelled to allow once it allows any at all, even forcing a
choice between opening non-public forums to almost any
private speech or to none, which the Supreme Court
acknowledged in Arkansas Educational Television
Commission, 523 U.S. at 680, was not merely hypothetical.
The Archdiocese contends also that, notwithstanding
whether the exclusion of religion could ever be constitutional
in any non-public forum, Guideline 12 is unconstitutional
because, like the restrictions challenged in Rosenberger,
Lamb’s Chapel v. Center Moriches Union Free School Dist.,
508 U.S. 384 (1993), and Good News Club v. Milford Central
School, 533 U.S. 98 (2001), it suppresses the Archdiocese’s
religious viewpoint on subjects that are otherwise includable in
the forum. But far from being an abrogation of the distinction
between permissible subject matter rules and impermissible
17
viewpoint discrimination, each of these cases represents an
application of the Supreme Court’s viewpoint discrimination
analysis, of which Guideline 12 does not run afoul. In each,
the Court held that the government had engaged in
unconstitutional viewpoint discrimination because the
challenged regulation operated to exclude religious viewpoints
on otherwise includable topics. An examination of each case
demonstrates the contrast between the breadth of subjects
encompassed by the forums at issue and WMATA’s in which,
unlike the restrictions struck down by the Court, Guideline 12
does not function to exclude religious viewpoints but rather
proscribes advertisements on the entire subject matter of
religion.
In Rosenberger, the University’s Guidelines stated that
“the purpose of the [Student Activities Fund (“SAF”)]” was “to
support a broad range of extracurricular student activities that
‘are related to the educational purpose of the University,’”
because “the University[] ‘recogni[zed] that the availability of
a wide range of opportunities’ for its students ‘tends to enhance
the University environment.’” Rosenberger, 515 U.S. at 824
(quoting Appendix to Pet. for Cert. 26, 61a). Its Guidelines
“recognize[d] 11 categories of student groups that may seek
payment to third-party contractors because they ‘are related to
the educational purpose of the University of Virginia,’”
including “student news, information, opinion, entertainment,
or academic communications media groups.” Id. (quoting
Appendix to Pet. for Cert. 61a–62a). The University denied
funding for Wide Awake: A Christian Perspective at the
University of Virginia, “invok[ing]” a Guideline “prohibit[ing]
. . . funding on behalf of publications that primarily promot[e]
or manifes[t] a particular belie[f] in or about a deity or an
ultimate reality.” Id. at 836 (internal quotation marks omitted).
The Supreme Court found this Guideline to “effect[] a
sweeping restriction on student thought . . . in the context of
18
University sponsored publications” and held the Guideline was
viewpoint discriminatory because “[b]y the very terms of the
SAF prohibition, the University does not exclude religion as a
subject matter but selects for disfavored treatment those
student journalistic efforts with religious editorial viewpoints.”
Id. at 831, 836 (emphasis added). The Court concluded that
“[t]he prohibited perspective, not the general subject matter,
resulted in the refusal to make third-party payments, for the
subjects discussed [in Wide Awake] were otherwise within the
approved category of publications.” Id. at 831.
In Lamb’s Chapel, the school property could be used for
“the holding of ‘social, civic and recreational meetings and
entertainments, and other uses pertaining to the welfare of the
community,’” but it could “not be used by any group for
religious purposes.” Lamb’s Chapel, 508 U.S. at 386–87
(quoting New York Educ. Law § 414(1)(c) & Appendix to Pet.
for Cert. 57a). When an evangelical church in the community
and its pastor applied for permission to use school facilities to
show lectures by Doctor James Dobson on his “views on the
undermining influences of the media that could only be
counterbalanced by returning to traditional, Christian family
values instilled at an early stage,” that is, a “[f]amily oriented
movie — from a Christian perspective,” permission was
denied. Id. at 387–89 (citation omitted). The Supreme Court,
acknowledging that “[t]here is no suggestion from the courts
below or from the [school] District or the State that a lecture or
film about child rearing and family values would not be a use
for social or civic purposes otherwise permitted,” reasoned that
because “[t]hat subject matter is not one . . . off limits to any
and all speakers,” the government had impermissibly “denie[d]
access to a speaker solely to suppress the point of view he
espouses on an otherwise includable subject.” Id. at 393–94
(quoting Cornelius, 473 U.S. at 806) (emphasis added).
19
Similar circumstances were present in Good News Club,
where the Milford Central School “enacted a community use
policy” stating purposes “for which its building could be used
after school,” including that “district residents may use the
school for ‘instruction in any branch of education, learning or
the arts’” and that “the school is available for ‘social, civic and
recreational meetings and entertainment events, and other uses
pertaining to the welfare of the community, provided that such
uses shall be nonexclusive and shall be opened to the general
public.” Good News Club, 533 U.S. at 102 (quoting Appendix
to Pet. for Cert. D1–D3). When the “sponsors of the local Good
News Club, a private Christian organization for children ages
6 to 12,” sought to use the school’s facilities “to have ‘a fun
time of singing songs, hearing a Bible lesson and memorizing
scripture,’” the district’s interim superintendent denied their
request on the ground that their proposed use “was ‘the
equivalent of religious worship.’” Id. at 103 (quoting Appendix
to Pet. for Cert. H1–H2). The Supreme Court held that the
school’s “exclusion of the Good News Club based on its
religious nature is indistinguishable from the exclusions in
[Rosenberger and Lamb’s Chapel]” and “that the exclusion
constitutes viewpoint discrimination” because there was “no
question that teaching morals and character development to
children is a permissible purpose under Milford’s policy” and
“it is clear that the [Good News] Club teaches moral and
character development to children,” but was excluded from the
use of school facilities “because Milford found the Club’s
activities to be religious in nature.” Id. at 107–08.
The restriction in WMATA Guideline 12 is unlike those
challenged in this trio of cases. In each case the property had
been opened to a wide range of subjects without excluding
religion and disallowing a religious viewpoint to be expressed
in those forums was unconstitutional. To the extent those cases
can be read to blur the line between religion-as-subject-matter
20
and a religious viewpoint, the Supreme Court’s analysis
emphasizes the breadth of the forums involved: the “broad
range” of activities in service of “educational purpose”
contemplated in Rosenberger, 515 U.S. at 824, and the
capacious range of “social, civic and recreational meetings and
entertainments, and other uses pertaining to the welfare of the
community” that might have been permitted in Lamb’s Chapel,
508 U.S. at 386, and Good News Club, 533 U.S. at 102. By
contrast, WMATA’s forum — its advertising space on the
exteriors of its buses — is not so broad, much less inviting
through its advertisements public debate on religion. Given the
express boundaries and narrow character of WMATA’s forum,
the Archdiocese’s “Find the Perfect Gift” ad does not represent
an excluded viewpoint on an otherwise includable subject. The
rejection of its ad instead reflects WMATA’s implementation
of a policy that the Supreme Court has deemed permissible in
a non-public forum, namely the “exclu[sion of] religion as a
subject matter,” Rosenberger, 515 U.S. at 831; see Lamb’s
Chapel, 508 U.S. at 393.
The precedents from our sister circuits on which the
Archdiocese relies do not disturb this understanding of the trio
of Supreme Court cases. Although the Archdiocese maintains
that Rosenberger does not permit the government to ban
religion as a subject matter, Appellant’s Br. 22–23, and that the
circuit cases “interpret[] Rosenberger in just this way[,]”
“reject[ing] arguments materially indistinguishable from
WMATA’s effort to defend the exclusion of religion and
religious viewpoints,” Appellant’s Br. 23, in fact these cases
underscore that precedent requires an evaluation of the forum
the government has created in order to determine whether a
challenged regulation discriminates on the basis of viewpoint,
and are an application of that analysis, rather than an
affirmation of the principle that religion as a subject may never
be banned in a non-public forum.
21
Of the cases the Archdiocese cites, only the Second Circuit
has directly addressed whether Rosenberger permits the
exclusion of religion as a subject matter from a non-public
forum. Byrne v. Rutledge, 623 F.3d 46 (2d Cir. 2010)
concerned a forum much broader in scope than WMATA’s.
Vermont’s regulation of vanity license plates allowed motorists
to place secular messages relating to their “personal
philosophy, beliefs, and values . . . identity and affiliation . . .
and statements of inspiration,” but excluded religious messages
“on matters of self-identity or . . . statements of love, respect,
or inspiration.” Id. at 57. The Second Circuit held that the
State had engaged in viewpoint discrimination because it
“distinguish[ed] between those who seek to express secular and
religious views on the same subjects.” Id. at 56–57 (emphasis
in original). Although observing that “Lamb’s Chapel,
Rosenberger, and Good News Club, read together, sharply
draw into question whether a blanket ban such as Vermont’s on
all religious messages in a forum that has otherwise been
broadly opened to expression on a wide variety of subjects can
neatly be classified as purely a ‘subject matter’ restriction for
purposes of First Amendment analysis,” the court declined to
“address bans on religious speech in forums limited to
discussion of certain, designated topics,” id. at 58–59. The
court’s holding thus accords with WMATA’s view that the
government may in a non-public forum it has established for
its advertising space proscribe religion as a subject matter
consistent with the Supreme Court’s precedent. This view also
accords with that of the Ninth Circuit, which has held that
Rosenberger permits a school district seeking to avoid
“disruption” to proscribe display of religious messages in a
non-public forum reserved for commercial messages. See
DiLoreto v. Downey Unified School Dist., 196 F.3d 958, 967–
70 (9th Cir. 1999).
22
The other circuit cases that the Archdiocese cites aid it
even less because they do not construe Rosenberger, but apply
it to invalidate as viewpoint discriminatory government
policies that sought to exclude religious viewpoints on
otherwise includable topics in a non-public forum. The
Seventh Circuit struck down the exclusion of religious
“seasonal displays” where “comparable secular holiday
displays by other private groups are permitted,” Grossbaum v.
Indianapolis-Marion County Bldg. Auth., 63 F.3d 581, 588 (7th
Cir. 1995), and prior to Rosenberger had struck down a policy
prohibiting the distribution of religious literature in school
where only “obscenity and libel” were similarly prohibited,
Hedges v. Wauconda Comm. Unit School Dist. No. 118, 9 F.3d
1295, 1297–98 (7th Cir. 1993). The Eighth Circuit cited
Lamb’s Chapel in invalidating a school district policy
permitting “any speech relating to moral character and youth
development” but excluding a club that wished to speak on that
topic from a religious perspective. Good News/Good Sports
Club v. School Dist. of Cty. of Ladue, 28 F.3d 1501, 1506 (8th
Cir. 1994). The Tenth Circuit simply reiterates the principle
that “[i]f . . . the government permits secular displays on a
nonpublic forum, it cannot ban displays discussing otherwise
permissible topics from a religious perspective,” Summum v.
Callaghan, 130 F.3d 906, 918 (10th Cir. 1997).
The Archdiocese nonetheless contends that Guideline 12
suppresses its religious viewpoint to the extent it wishes to
address topics such as charitable giving, Christmas, and
opening hours on which WMATA allows non-religious but not
religious messages. Similarly, the Franciscan Monastery USA,
one of the Archdiocese’s amici, maintains that its ad exhorting
viewers to visit the Franciscan Monastery of the Holy Land in
America expresses its religious viewpoint on places to visit, on
which WMATA allows secular but not religious messages.
These contentions are unpersuasive because the subjects on
23
which the Archdiocese and the Monastery claim they wish to
speak through advertisements on WMATA buses are either not
subjects within the forum or are not subjects on which they
have shown they could not speak under Guideline 12.
The Archdiocese’s “Find the Perfect Gift” ad is not
primarily or recognizably about charitable giving, as it is not
primarily or recognizably about opening hours or places to
visit. Like the Monastery’s ad, the Archdiocese’s ad is a
religious ad, an exhortation, repeatedly acknowledged by the
Archdiocese to be part of its evangelization effort to attend
mass at Catholic churches in connection with Advent.
Timoney Decl. ¶ 4; McFadden Decl. ¶ 3. The imagery of the
Archdiocese’s “Find the Perfect Gift” ad is evocative not of the
desirability of charitable giving, but rather the saving grace of
Christ, which is not a subject included in the WMATA forum.
Had the Archdiocese wished to submit an ad encouraging
charitable giving, nothing in the record suggests it could not do
so. WMATA accepted the ad of the Salvation Army, a
religious organization whose ad exhorted giving to charity but
contained only non-religious imagery. WMATA
acknowledged in the district court, 2017 Mot. Hg. Tr. at 64,
and again in this court that it would not reject as running afoul
of Guideline 12 an ad from the Archdiocese that read “[P]lease
[G]ive to Catholic Charities,” Oral Arg. Tr. 31.
Nor has the Archdiocese pointed to an ad WMATA has
accepted addressing Christmas except for commercial ads for
Christmastime sales of goods. From these ads the Archdiocese
concludes that Guideline 12 impermissibly excludes a religious
viewpoint on Christmas while permitting a secular one. The
Supreme Court, however, has rejected the view that accepting
commercial advertising “create[s] a forum for the
dissemination of information and expression of ideas” and
“sanction[s] . . . [a] preference for . . . commercialism.”
24
Lehman, 418 U.S. at 310, 315 (Brennan, J., dissenting); see id.
at 302 (plurality opinion) (citations omitted); id. at 305–06, 308
(Douglas, J., concurring) (citations omitted). So understood,
ads promoting Christmastime sales are not expressing a view
on Christmas any more than a McDonald’s ad expresses a view
on the desirability of eating beef that demands the acceptance
of a contrary ad from an animal rights group, or than a
Smithsonian Air and Space Museum ad for a special stargazing
event expresses a view on the provenance of the cosmos that
demands a spiritual response. Commercial advertisements are
designed to sell products: As the district court observed in
noting the Archdiocese’s evidentiary shortcomings for its
argument that WMATA accepts advertisements that promote
the commercialization of Christmas, commercial
advertisements “proclaim: Shop Here! Buy This!” while saying
nothing about the sellers’ viewpoints on how Christmas should
be observed. 281 F. Supp. 3d at 104. Or in terms used by the
Supreme Court, the ads imploring the purchase of products do
not invite “debate,” Rosenberger 515 U.S. at 831, about how
Christmas should be celebrated. Were a court to treat such
commercial advertising as expressing a broader view, it would,
furthermore, eviscerate the distinction between viewpoint-
based and subject-based regulation on which the forum
doctrine rests, and the longstanding recognition that the
government may limit a non-public forum to commercial
advertising.
3. Because WMATA’s Guideline 12 is viewpoint
neutral, the question remains whether “the distinctions drawn
are reasonable in light of the purpose served by the forum.”
Cornelius, 473 U.S. at 806 (citing Perry Educ. Ass’n, 460 U.S.
at 49). The reasonability inquiry is not a demanding one, but
rather is a “forgiving test.” Minn. Voters Alliance, 138 S. Ct.
at 1888. The challenged “restriction ‘need not be the most
reasonable or the only reasonable limitation,’” Hodge v. Talkin,
25
799 F.3d 1145, 1165 (D.C. Cir. 2015) (quoting Cornelius, 473
U.S. at 808), but the regulation must simply be reasonable as
consistent with the government’s legitimate interest in
maintaining the property for its dedicated use, Perry Educ.
Ass’n, 460 U.S. at 46, 51.
In 2015, WMATA decided to avoid the divisiveness
caused by certain advertisements and specifically to avoid the
inflamed passions surrounding religion. Its adoption of
Guideline 12 reflected a considered judgment after study, and
including examination of the views of the marketplace.
WMATA had fielded security concerns arising from the
controversial ad depicting the Prophet Mohammed, which had
prompted an armed attack at the place where the cartoon was
produced. It also had weathered controversy surrounding an
ad critical of the Catholic Church’s position on condom usage.
WMATA’s closure of its forum to certain broad subjects is
reasonable in light of its core purpose and experience, and is
responsive to the very circumstances that prompted WMATA
to reevaluate its advertising approach. The non-public forum
WMATA created has a history not unlike that in Cornelius, 473
U.S. at 799–800, where the federal government redesigned a
charity fundraising program in order to avoid workplace
disruptions; so too WMATA’s decision in 2015 to abandon a
former approach to its advertising space that interfered with its
ability to provide safe and reliable transportation “attractive to
the marketplace,” Int’l Soc. For Krishna Consciousness, 505
U.S. at 682.
Although a challenged regulation may be unreasonable,
regardless of the reasons for its adoption, if it is inconsistently
enforced, see Minn. Voters Alliance, 138 S. Ct. at 1888–90, the
Archdiocese has not shown that “WMATA . . . appl[ies] [its]
policy in arbitrary and unreasonable ways,” Appellant Br. 30.
The Archdiocese suggests WMATA has been inconsistent
26
insofar as it has accepted advertisements from religious
speakers like the Salvation Army and a Christian radio station
while rejecting the Archdiocese’s “Find the Perfect Gift” ad.
In fact, running the Salvation Army’s and the radio station’s
ads underscores that WMATA is consistently rejecting ads that
have religious content rather than discriminating against ads
submitted by religious speakers. The Archdiocese’s
suggestion that WMATA has been inconsistent because it
accepted an ad from a yoga studio containing the slogan
“Muscle + Mantra,” ignores that ad is not recognizably
religious as the Archdiocese’s ad plainly is, by its own
characterization. Although a restriction may also be
unreasonable if it is unclear what speech would be swept in or
otherwise seriously hamper consistent administration, see
Minn. Voters Alliance, 138 S. Ct. at 1888–90, given the history
and experience that prompted WMATA to adopt Guideline 12
and WMATA’s enforcement of it, the Archdiocese has not
shown that Guideline 12 has failed to give adequate guidance
on what is prohibited, or created so many marginal cases that it
cannot be fairly administered. On the contrary, WMATA has
articulated a “sensible basis for distinguishing what may come
in from what must stay out.” Id. at 1888 (citing Cornelius, 473
U.S. at 80–09).
The Archdiocese at oral argument clarified its position is
that Guideline 12 is unreasonable because it is never reasonable
to discriminate against religion. Oral Arg. Tr. 20–21. If by
discrimination the Archdiocese refers to animus, there is no
record evidence of WMATA animus, nor does the Archdiocese
point to any now. Given Supreme Court precedent in
Cornelius and Perry Education Association rejecting First
Amendment challenges to subject matter exclusions in a non-
public forum, the Archdiocese cannot mean discrimination as
in demarcation of a subject matter. Any regulation must name
its subject, and such naming is not the kind of textual hook from
27
which a court may infer animus. The Archdiocese’s position
is inconsistent with Cornelius and Perry Education Association
where the Supreme Court instructs courts to analyze the
reasonableness of the regulation in light of the purpose of the
forum, not to intuit whether a freestanding regulation seems
objectionable in isolation.
On the other hand, if the Archdiocese is objecting to the
reasonableness standard itself where the subject of religion is
barred in a non-public forum, this is either another attempt to
backtrack from its concession in the district court or to undo
long-standing precedent in Lehman as well as the forum
doctrine. Addressing the argument on its own terms, the
Archdiocese nowhere suggests that WMATA does not have a
compelling interest in ensuring the safety and reliability of its
transportation services and operating in a manner that
maintains the attractiveness of its service to a multi-cultural,
multi-ethnic, and religiously diverse ridership, including
visitors to the Nation’s capital and its environs from home and
abroad, while simultaneously avoiding censorship in accord
with the principles set forth in Barnette, 319 U.S. at 642. That
is, even under a heightened standard, Guideline 12 is a
management tool adopted in light of WMATA’s experience
that appropriately defines a limited forum for its advertising
space.
B.
The Archdiocese’s likelihood of success on its Free
Exercise Clause and RFRA arguments is dubious at best. As a
result, the Archdiocese’s hybrid rights claim, see Appellant’s
Br. 37, fares no better because it requires independently viable
free speech and free exercise claims, and “in law as in
mathematics zero plus zero equals zero.” Henderson v.
Kennedy, 253 F.3d 12, 19 (D.C. Cir. 2001).
28
1. Generally, the Free Exercise Clause does not
exempt individuals from complying with neutral laws of
general applicability. See Levitan v. Ashcroft, 281 F.3d 1313,
1318 (D.C. Cir. 2002) (citing Employment Div., Dep’t of
Human Resources v. Smith, 494 U.S. 872, 878–79 (1990)).
Non-neutral laws are impermissible because they have as their
“object . . . to infringe upon or restrict practices because of their
religious motivation.” Church of the Lukumi Babalu Aye v.
Hialeah, 508 U.S. 520, 533 (1993); see also American Family
Ass’n Inc. v. FCC, 365 F.3d 1156, 1170–71 (D.C. Cir. 2004).
As the Supreme Court explained in Lukumi Babalu, “[t]here
are . . . many ways of demonstrating that the object or purpose
of a law is the suppression of religion or religious conduct.”
Lukumi Babalu, 508 U.S. at 533. The Court “begin[s] with its
text” and then considers whether there might be “governmental
hostility which is masked, as well as overt.” Id. at 533–34. The
“[f]actors relevant to the assessment of governmental neutrality
include ‘the historical background of the decision under
challenge, the specific series of events leading to the enactment
or official policy in question, and the legislative or
administrative history, including contemporaneous statements
made by members of the decisionmaking body.” Masterpiece
Cakeshop, 138 S. Ct. at 1731 (quoting Lukumi Babalu, 508
U.S. at 540).
Nothing in the record indicates Guideline 12 was
motivated by the “hostility” that motivated the city ordinance
in Lukumi Babalu. The Archdiocese has made no showing, nor
purported to make a showing, that the WMATA Board of
Directors harbored any discriminatory intent or pro- or anti-
religion bias in its decisionmaking process. Instead, there is
ample record basis from which WMATA could reasonably
conclude in 2015 that controversial advertisements, including
advertisements with religious messages, interfered with its
29
ability to ensure rider safety and maintain employee morale,
posed potential security risks, and fostered community
opposition — all to the detriment of its attractiveness to
ridership. Contrary to the Archdiocese’s position that a
discriminatory object is evident because WMATA’s interests
are not sufficient to support an exclusion of the subject of
religion and because the District of Columbia allows similar
advertisements on its stationary bus shelters, Guideline 12
evinces a level of means-and-ends fit that is inconsistent with
the Archdiocese’s contentions and generally with finding
discrimination. In the face of experience that running religious
ads caused controversy and even had the potential to cause
violence, see Bowersox Decl. ¶¶ 9, 11, WMATA chose to
exclude the subject of religion from its advertising space. It has
also offered a secular purpose for doing so, which includes
maximizing security of its transit system and minimizing
vandalism of WMATA property. That rationale, and the
secular basis for which there is no evidence of pretext, is
inconsistent with finding discrimination.
Nor does the District of Columbia’s approach to
advertising on its stationary bus shelters evince any
irrationality in WMATA’s decisionmaking. The District
government contracts with Clear Channel Outdoor to
“provide[] and maintain[] bus shelters throughout the
metropolitan area, and . . . sell[] advertising at or near the bus
shelters.” Compl. ¶ 12. WMATA contracts with a different
company to administer its policy on advertising space of bus
exteriors. Id. ¶ 16; Bowersox Decl. ¶ 27. The Archdiocese
provides no reason the District government’s approach for
stationary space it controls should dictate the degree to which
WMATA, as an interstate compact, is entitled to manage
advertising space on its buses.
30
Of course, WMATA may not target religious speakers for
exclusion from a generally available benefit. In Trinity
Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012
(2017), the state government offered reimbursement grants to
qualifying nonprofit organizations that installed playground
surfaces made from recycled tires, but it had an express policy
of denying grants to churches and other religious entities. That
is, the state “pursued its preferred policy to the point of
expressly denying a qualified religious entity a public benefit
solely because of its religious character.” Id. at 2024.
WMATA is not discriminating based on the status of the
speaker. As is clear, for example, from WMATA’s acceptance
of the Salvation Army ad, religious speakers are not excluded
because they are religious speakers. That alone is sufficient to
distinguish Trinity Lutheran.
Moreover, unlike Trinity Lutheran, this is a forum case.
Trinity Lutheran involved a series of criteria for eligibility for
which the church had “fully qualified,” id. at 2023. WMATA,
by contrast, has by adopting Guidelines created a forum in
which the benefit in question — its advertising space — can no
longer be said to be “generally available.” It would strain
Trinity Lutheran to read its prohibition on discriminating
against religious speakers or speakers because of religious
speech to suggest that exclusion of religion as a subject matter
is necessarily discrimination against religious speakers. If that
were the correct understanding of Trinity Lutheran, then it
would have upended, sub silentio, Rosenberger and Lamb’s
Chapel as well as the forum doctrine because it would never be
possible to exclude religion as a subject matter.
2. The Archdiocese is also unlikely to succeed on its
RFRA claim for alternative reasons: not only has it failed to
demonstrate a “substantial[] burden” on its “exercise of
religion,” 42 U.S.C. § 2000bb-1(a), that is, “substantial
31
pressure on an adherent to modify his behavior and to violate
his beliefs,” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C.
Cir. 2008) (quoting Thomas v. Review Bd., 450 U.S. 707, 718
(1981)), but also RFRA would appear to be inapplicable to
WMATA.
The Archdiocese alleges that advertising on public buses
provide a “unique and powerful format” for its evangelization
campaign because it “offers high visibility with consistent daily
views,” including in “many areas of the metropolitan region
that are otherwise underserved and that other, more static
advertising campaigns might miss.” Compl. ¶ 15; see
McFadden Decl. ¶¶ 8–10. But the Archdiocese has not alleged
that its religion requires displaying advertisements on
WMATA’s buses promoting the season of Advent, much less
the display of any advertisements at all. Instead, the
Archdiocese has acknowledged that it has many other ways to
pursue its evangelization efforts: in newspapers, through social
media, and even on D.C. bus shelters. Compl. ¶¶ 11–12.
Sincere religious beliefs are not impermissibly burdened by
restrictions on evangelizing in a non-public forum where a
“multitude of means” remains for the same evangelization. See
Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011);
Henderson, 253 F.3d at 17. In these circumstances, the
Archdiocese has not demonstrated a likelihood of success on
its RFRA claim.
Even so, there is a threshold question whether RFRA can
be constitutionally applied to WMATA. WMATA is an
interstate compact between two sovereign states and the
District of Columbia. See D.C. Code § 9-1107.01(4); Md.
Code Transp. § 10-204(4); Va. Code Ann. § 33.2-3100(4). The
Supreme Court has held that RFRA cannot constitutionally
apply to the states, see City of Boerne v. Flores, 521 U.S. 507,
511 (1997), because it would impermissibly “curtail[] their
32
traditional general regulatory power” and impose “substantial
costs” on the states, id. at 534. Although adding Virginia and
Maryland to the WMATA Compact may not free the District
of Columbia from its own obligation to comply with RFRA,
see Potter v. District of Columbia, 558 F.3d 542, 544 (D.C. Cir.
2009), the District of Columbia’s compliance with RFRA is not
at issue. Rather the Archdiocese has challenged WMATA’s
compliance with RFRA, and WMATA is an instrumentality
and agency of states to which the Supreme Court has concluded
RFRA cannot constitutionally apply. Immunities conferred by
Maryland and Virginia are not lost by the addition of the
District of Columbia to the Compact. See Morris v. WMATA,
781 F.2d 218, 228 (D.C. Cir. 1986).
The Archdiocese’s responds that RFRA applies to
WMATA because Section 76(e) the Compact provides that if
WMATA rules violate the laws, ordinances, rules, or
regulations of a signatory, then the law of that signatory applies
and the WMATA rule is void. See D.C. Code § 9-
1107.01(76(e)). The Archdiocese’s point would appear to cut
against it, because the high degree of control each signatory
retains over WMATA suggests the states did not cede their
sovereignty by joining the Compact. In any event, it is unclear
how RFRA could apply only to the District of Columbia as a
Compact member when Maryland and Virginia have not ceded
their sovereign prerogatives by joining the Compact, see
Tarrant Regional Water Dist. v. Herrmann, 569 U.S. 614, 632
(2013); Morris, 781 F.2d at 227. The Archdiocese does not
suggest that Section 76(e) could be judicially enforceable yet
unconstitutional. Compacts generally have the status of federal
law. See Kansas v. Nebraska, 135 S. Ct. 1042, 1053 (2015).
To the extent enforcement in this context would “curtail[]”
Maryland’s and Virginia’s “traditional general regulatory
power,” City of Boerne, 521 U.S. at 534, enforcing the
33
Compact provision would produce an unconstitutional result,
see Texas v. New Mexico, 462 U.S. 554, 564 (1983).
The immunity issue was not thoroughly briefed by the
parties, however. Suffice it to say, the Archdiocese’s RFRA
challenge poses that question as an antecedent issue due to the
presence of two sovereign states in the Compact. For now the
court need only conclude that the Archdiocese has not
demonstrated that it is likely to prevail on the merits of its
RFRA challenge, either due to the paucity of the TRO record
or the immunity issue underlying the Archdiocese’s reliance on
Section 76(e).
C.
The remaining preliminary injunction factors —
irreparable injury, the balance of equities, and public interest
— also do not weigh in the Archdiocese’s favor. Although
“[i]n First Amendment cases, the likelihood of success will
often be the determinative factor in the preliminary injunction
analysis,” Pursuing America’s Greatness v. FEC, 831 F.3d
500, 511 (D.C. Cir. 2016) (internal quotation marks and
citation omitted), this court has not yet decided whether Winter
v. National Resources Defense Council, 555 U.S. 7, 20–22
(2008), is properly read to suggest a “sliding scale” approach
to weighing the four factors be abandoned, see League of
Women Voters, 838 F.3d at 7 (citation omitted). The instant
case likewise “presents no occasion for the court to decide
whether the ‘sliding scale’ approach remains valid after
Winter.” Id.
Were the Archdiocese to show a likelihood of success on
the merits, see supra Part II.A & B, it would prevail on the final
three factors because “the loss of constitutional freedoms, ‘for
even minimal periods of time, unquestionably constitutes
34
irreparable injury,’” Mills v. District of Columbia, 571 F.3d
1304, 1312 (D.C. Cir. 2009) (quoting Elrod v. Burns, 427 U.S.
347, 373 (1976) (plurality opinion)). This court has defined the
irreparable injury analysis to “examine only whether [the
constitutional] violation, if true, inflicts irremediable injury,”
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290,
303 (D.C. Cir. 2006), because the harm both is “certain and
great,” “actual and not theoretical,” and “imminen[t],” and also
“beyond remediation,” id. at 297 (citation omitted).
Conversely, the deprivation of constitutional rights constitutes
irreparable injury only to the extent such deprivation is shown
to be likely. See League of Women Voters, 838 F.3d at 8-9
(citing Winter, 555 U.S. at 22). The court has no occasion to
decide whether, see Appellant’s Br. 49, irreparable injury could
weigh in favor of granting a preliminary injunction where there
is no showing of a likelihood of success on the merits.
The same conclusion is true of the final two factors. See
Pursuing America’s Greatness, 831 F.3d at 511 (citing Nken v.
Holder, 556 U.S. 418, 435 (2009)). The Archdiocese maintains
there will be no corresponding harm to WMATA if it runs the
Archdiocese’s “Find the Perfect Gift” ad, and that WMATA
will benefit because it will have gained advertising revenues.
WMATA takes the opposite position, having concluded that
the additional revenue from accepting such ads is outweighed
by the impact on employee morale, community opposition,
security concerns, vandalism, and administrative burdens that
prompted WMATA to adopt the Guidelines. Resolution here
hinges on the likelihood of success on the merits because while
the costs that WMATA has identified associated with running
political, religious, and advocacy ads may outweigh the
marginal benefit of additional advertising revenue, the calculus
would be different weighing WMATA’s costs against the
Archdiocese’s suffering a constitutional violation.
35
Similarly, although the Archdiocese contends that the final
factor weighs in its favor because the public interest favors the
protection of constitutional rights, the strength of the
Archdiocese’s showing on public interest rises and falls with
the strength of its showing on likelihood of success on the
merits. The public interest favors the protection of
constitutional rights, see, e.g., Gordon v. Holder, 721 F.3d 638,
653 (D.C. Cir. 2013), but the Archdiocese would need to show
a likelihood of violation of its constitutional rights, and it has
not done so.
In sum, religious speech and the free exercise of religion
are of central First Amendment importance. Yet the
Archdiocese presses an untenable position under Supreme
Court precedent. By urging a capacious vision of viewpoint
discrimination, it would effectively prevent the limitation of a
non-public forum to commercial advertising, and upend
decades of settled doctrine permitting governments to run
transit companies without establishing forums for debate on the
controversial issues of the ages and of the day, including not
only the subject of religion but also politics and advocacy
issues. Indeed, having allowed any speech, governments might
be required to accept speech on all subjects because the
Archdiocese offers no principled limit cabining its position to
religion. Urging the finding of a free exercise violation based
on no evidence of animus other than Guideline 12’s naming of
religion, the Archdiocese again invites the court to impute
hostility on a heretofore unrecognized basis, and with no
suggestion of how the proscription of the subject of religion
might otherwise be effected in a non-public forum. This
position not only finds no support in Supreme Court precedent,
but would also upend it, something this lower court may not
do. Accordingly, we affirm the denial of the preliminary
injunction.
1
WILKINS, Circuit Judge: I join in the Court’s opinion. I
write separately to discuss the importance of traditional forum
doctrine to protecting First Amendment values and to
emphasize that WMATA’s Guideline 12 conforms with those
values.
A founding premise of our political system is that
government is not a “competent judge” of truth. See James
Madison, Memorial and Remonstrance Against Religious
Assessments (1785). That responsibility belongs to the people,
whose superior ability and authority in the marketplace of ideas
is reflected and secured by the First Amendment. See Turner
Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994) (“At
the heart of the First Amendment lies the principle that each
person should decide for himself or herself the ideas and beliefs
deserving of expression, consideration, and adherence.”).
Yet the Constitution accommodates those limited
circumstances in which government must be permitted some
control over expressive content to carry out its proper
functions. For instance, the government may “speak[] on its
own behalf.” Walker v. Tex. Div., Sons of Confederate
Veterans, Inc., 135 S. Ct. 2239, 2251 (2015). Additionally, the
government may place speech-restrictive conditions on
participation in its programs if those conditions are confined to
the scope of the program. See, e.g., U.S. Agency for Int’l
Development v. Alliance for Open Society Int’l, Inc., 570 U.S.
205, 215-17 (2013); FCC v. League of Women Voters of Cal.,
468 U.S. 364, 399-401 (1984). The government may also
prohibit constitutionally unprotected speech, such as
defamation or obscenity, so long as the restriction is based on
proscribable content and not “hostility – or favoritism –
towards the underlying message expressed.” R.A.V. v. City of
St. Paul, 505 U.S. 377, 386 (1992); see also City of Lakewood
v. Plain Dealer Pub. Co., 486 U.S. 750, 763-65 (1988).
2
These doctrines apply in different contexts but embody the
same core First Amendment values: “that more speech, not
less, is the governing rule,” Citizens United v. FEC, 558 U.S.
310, 361 (2010), and that “the danger of censorship . . . is too
great where officials have unbridled discretion over a forum’s
use,” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,
553 (1975).
To preserve these values within the practical realities of
government property, the Supreme Court has repeatedly held
that the government may categorically limit the subject matter
of private speech in nonpublic forums, provided the limitation
is reasonably related to the forum’s purposes and, as with
restrictions on unprotected speech, not a cover for suppressing
viewpoints with which the government disagrees. See
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.
788, 799-800 (1985) (“Nothing in the Constitution requires the
Government freely to grant access to all who wish to exercise
their right to free speech on every type of Government
property[.]”); see also Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 49 (1983) (holding that the
exclusion of communications from one union to potential
members while allowing communications from another was
not viewpoint discrimination because there was “no indication
that the school board intended to discourage one viewpoint and
advance another” (emphasis added)); Widmar v. Vincent, 454
U.S. 263, 280 (1981) (“[T]he university . . . may not allow its
agreement or disagreement with the viewpoint of a particular
speaker to determine whether access to a forum will be
granted.”) (Stevens, J., concurring); Greer v. Spock, 424 U.S.
828, 838-39 (1976) (concluding a restriction on partisan speech
was properly applied because “there is no claim that the
military authorities discriminated in any way among candidates
for public office based on the candidates’ supposed political
3
views”); Initiative & Referendum Inst. v. U.S. Postal Serv., 685
F.3d 1066, (D.C. Cir. 2012) (A speech restriction in a
nonpublic forum is permissible if “reasonable and not an effort
to suppress expression merely because public officials oppose
the speaker’s view.”). Government must be able to
prospectively set administrable subject-matter-based rules for
its nonpublic forums if it is to allow any private speech at all.
But because government favoritism in public debate is so
pernicious to liberty and democratic decisionmaking,
otherwise permissible subject-matter restrictions are rendered
unconstitutional when the government chooses sides within the
subject matter. Matal v. Tam, 137 S. Ct. 1744, 1766 (2017)
(“[T]he test for viewpoint discrimination is whether – within
the relevant subject category – the government has singled out
a subset of messages for disfavor based on the views
expressed.”); Good News Club v. Milford Cent. Sch., 533 U.S.
98, 112 (2001) (“[S]peech discussing otherwise permissible
subjects cannot be excluded from a limited public forum on the
ground that the subject is discussed from a religious
viewpoint.”); Cornelius, 473 U.S. at 806 (The government acts
unconstitutionally when prohibiting a speaker from expressing
“[a] point of view he espouses on an otherwise includable
subject.”).
Properly understood, the distinction between subject
matter and viewpoint is critical to forum doctrine’s balance of
the practical need to regulate private speech on nonpublic
property, on one hand, with maximizing opportunities for
speech and vigilance against unbridled administrative
discretion, on the other. See Cornelius, 473 U.S. at 800.
Without reasonable control over the content of private speech
in nonpublic forums, government may elect to close a forum
entirely rather than deal with the administrative burden or
floodgate consequences of accepting private speech without
effective subject-matter restrictions. Further, by requiring
4
government to set prospective, categorical, subject-matter rules
by which to evaluate private speech, forum doctrine provides
public notice of what speech is permissible and constrains the
discretion of government actors to pick favorites on an ad hoc
basis. See City of Lakewood, 486 U.S. at 758 (“Only standards
limiting the licensor’s discretion will eliminate this danger [of
chilling private speech] by adding an element of certainty fatal
to self-censorship.”); id. at 756-57 (collecting cases and
explaining that “[a]t the root of this long line of precedent is
the time-tested knowledge that in the area of free expression a
licensing statute placing unbridled discretion in the hands of a
government official or agency . . . may result in censorship”).
Guideline 12 fits comfortably within this longstanding
doctrinal framework. WMATA prohibits “[a]dvertisements
that promote or oppose any religion, religious practice or
belief.” J.A. 209 (emphasis added). Guideline 12 is thus a
categorical subject-matter restriction by its own terms: It
prohibits any advertisement whatsoever on the subject of
religious or anti-religious advocacy, whether favoring or
opposing religion in general, or any particular religion, belief,
or practice. Cf. Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819, 831 (1995) (“By the very terms of [its
policy], the University does not exclude religion as a subject
matter but selects for disfavored treatment those student
journalistic efforts with religious editorial viewpoints.”). It
does not take sides; it restricts all speech on the topic equally,
without discriminating within the defined category. See Minn.
Voter’s Alliance v. Mansky, 138 S. Ct. 1876, 1886 (2018) (“The
text of the [ordinance] makes no distinction based on the
speaker’s political persuasion, so [plaintiff] does not claim that
the ban [on ‘political’ apparel] discriminates on the basis of
viewpoint.”); Good News Club, 533 U.S. at 111-12; see also
R.A.V., 505 U.S. at 388 (“When the basis for the content
discrimination consists entirely of the very reason the entire
5
class of speech at issue is proscribable, no significant danger of
idea or viewpoint discrimination exists.”).
By contrast, the speech restrictions struck down in Lamb’s
Chapel, Rosenberger, and Good News Club each singled out
religious viewpoints that otherwise fell within prospectively
defined, permissible subject matter. Stated otherwise, those
decisions involved rules that permitted private speakers to
discuss categories A, B, and C, but when a speaker sought to
discuss C from a pro-religious perspective, they were
improperly prohibited from doing so. Applying traditional
forum doctrine, the Supreme Court held that these prohibitions
unconstitutionally singled out a subset of views within the
forum’s permissible, previously established subject-matter
categories. Good News Club, 533 U.S. at 109 (“Like the
church in Lamb’s Chapel, the Club seeks to address a subject
otherwise permitted under the rule, the teaching of morals and
character, from a religious standpoint.”). This approach
comports with the underlying purposes of forum doctrine:
Practicality permits government to restrict content within its
nonpublic forums in a prospective, administrable manner, but
once the parameters of those restrictions are set, administrators
cannot further discriminate against a disfavored view that falls
within those predetermined parameters.
Here, the Archdiocese does not challenge the exclusion of
speech that otherwise fits within a permissible subject matter
category – it challenges the subject-matter category itself. Cf.
Rosenberger, 515 U.S. at 831 (“[T]he University does not
exclude religion as a subject matter but selects for disfavored
treatment those student journalistic efforts with religious
editorial viewpoints.”). The Archdiocese argues that if
commercial advertisements mentioning the holiday season are
approved, its religious-advocacy advertisements must also be
permitted because they share the same holiday-season “subject
6
matter” and, therefore, any distinction would be based on
“viewpoint.” Appellant Br. 19-20. But such alleged
“viewpoint” discrimination could always be reverse-
engineered by comparing a prohibited statement with any
permitted statement – real or hypothetical – and finding some
kind of subject-matter commonality between the two. This
improperly inverts the forum-doctrine analysis, ignoring how
the government prospectively defined permissible subject
matter for its nonpublic forum in general, and instead focusing
on how a stymied speaker wants to characterize the relevant
“subject matter” in a particular case. Allowing an individual
private speaker to retroactively redefine the relevant “subject
matter” whenever her speech is restricted, as the Archdiocese
would have us do, is not only contrary to how the Supreme
Court has structured forum analysis, it would make crafting
administrable content categories for nonpublic forums nearly
impossible.
At base, the Archdiocese asks us to erase the Supreme
Court’s critical distinction between permissible subject-matter
restrictions and impermissible viewpoint discrimination.
However, as the primary opinion notes, the Supreme Court has
repeatedly upheld and applied the distinction between subject
matter and viewpoint. See, e.g., Mansky, 138 S. Ct. at 1885
(“[O]ur decisions have long recognized that the government
may impose some content-based restrictions in nonpublic
forums[.]”); Reed v. Town of Gilbert, 135 S. Ct. 2218, 2230
(2015) (“Government discrimination among viewpoints – or
the regulation of speech based on the specific motivating
ideology or the opinion or perspective of the speaker – is a
more blatant and egregious form of content discrimination”
than subject-matter restrictions. (quotation marks omitted));
Rosenberger, 515 U.S. at 830-31 (distinguishing between
restricting religious subject matter and religious viewpoints).
And for good reason: Forum doctrine’s boundary between
7
permissible subject-matter restrictions and impermissible
viewpoint discrimination is a load-bearing wall in the First
Amendment’s structure. Adopting the Archdiocese’s position
would topple the careful balance struck by the Supreme Court
of allowing government to manage expressive content in
nonpublic forums, while cabining its discretion with
administrable rules and encouraging it to keep these forums
open to private speech.
Further, the lack of a principled limitation of the
Archdiocese’s rule to religious speech could have sweeping
implications for what private expression government may be
compelled to allow in nonpublic forums once it allows any at
all. See Matal, 137 S. Ct. at 1763 (holding, in the context of
commercial speech, that the Lanham Act’s prohibition on
registering offensive or disparaging trademarks constituted
unconstitutional viewpoint discrimination analogous to that in
a limited public forum); Heffron v. Int’l Soc. for Krishna
Consciousness, Inc., 452 U.S. 640, 652 (1981) (“[R]eligious
organizations [do not] enjoy rights to communicate . . . superior
to those of other organizations having social, political, or other
ideological messages to proselytize.”). In neither briefing nor
at oral argument did the Archdiocese offer a cogent explanation
of how such a rule could be restricted to religious speech. After
all, political speech has frequently been designated as the most
highly protected form of First Amendment expression. See,
e.g., Pursuing America’s Greatness v. FEC, 831 F.3d 500, 508
(D.C. Cir. 2016) (“The First Amendment ‘has its fullest and
most urgent application to speech uttered during a campaign
for political office.’” (quoting Ariz. Free Enter. Club’s
Freedom Club PAC v. Bennett, 564 U.S. 721, 734 (2011))).
And, in addition to naming the “free exercise of religion” as a
fundamental right, the plain text of the First Amendment
explicitly protects activities such as petitioning and the press.
U.S. Const. amend. I. The Archdiocese’s approach of
8
collapsing subject matter and viewpoint might therefore
reclassify the vast majority of what are now considered subject-
matter restrictions as unconstitutional viewpoint restrictions,
forcing government to choose between opening nonpublic
forums to almost any private speech, or to none. Such a result
is inimical to the First Amendment. See Ark. Educ. Television
Comm’n v. Forbes, 52 U.S. 666, 680-81 (1998).
Of course, it is not enough to avoid viewpoint
discrimination; a subject-matter restriction must also be
reasonable, i.e., “consistent with the government’s legitimate
interest in maintaining the property for its dedicated use.”
Initiative & Referendum Inst., 685 F.3d at 1073. The Supreme
Court recently provided further guidance on forum doctrine’s
“reasonableness” prong in Minnesota Voters Alliance v.
Manksy, which struck down a ban on any “political badge,
political button, or other political insignia” in the interior of a
polling place as unreasonable in relation to the purposes of the
forum. 138 S. Ct. at 1883. “Although there is no requirement
of narrow tailoring in a nonpublic forum, the State must be able
to articulate some sensible basis for distinguishing what may
come in from what must stay out.” Id. at 1888. The vagueness
of the word “political,” “combined with haphazard
interpretations the State [] provided in official guidance and
representations to [the] Court,” led the Supreme Court to
conclude that the ban did not survive the “forgiving”
reasonableness test. Id.
As the primary opinion explains, both record evidence and
common sense show a “sensible basis” for WMATA’s
conclusion that prohibiting religious or anti-religious advocacy
advertisements avoids risks of vandalism, violence, passenger
discomfort, and administrative burdens in a manner that serves
the forum’s stated purpose of providing “safe, equitable, and
reliable transportation services.” J.A. 204. Guideline 12 is also
9
readily distinguishable from the ordinance struck down in
Mansky. WMATA’s prohibition on advertisements that
“promote or oppose any religion, religious practice or belief,”
is narrower and more precise than simply a general ban on
“religious” or “political” speech. See Mansky, 138 S. Ct. at
1891. Moreover, there is no indication that WMATA has
promulgated anything like conflicting or confusing guidance
that, “combined with” the vague term “political,” rendered the
Minnesota ordinance unreasonable. Id. at 1889.
Because Guideline 12 readily meets the longstanding
doctrinal test for permissible subject-matter restrictions in
nonpublic forums, and because the Archdiocese’s novel
analytical approach would both upend forum doctrine and
undermine the First Amendment values that doctrine protects,
I concur.