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

• Decision Date: 31 July 2018
• Docket Number: No. 17-7171,17-7171
• Citation: 897 F.3d 314
• Parties: 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
• Court: U.S. Court of Appeals — District of Columbia Circuit

897 F.3d 314

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

No. 17-7171

United States Court of Appeals, District of Columbia Circuit.

Argued March 26, 2018

Decided July 31, 2018

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.

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.

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 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, 94 S.Ct. 2714, 41 L.Ed.2d 770 (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, 94 S.Ct. 2714 (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, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n , 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (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 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, 115 S.Ct. 2510, 132 L.Ed.2d 700 (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 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." 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 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...