United States Court of Appeals, District of Columbia Circuit
Archdiocese of Washington, Donald Cardinal Wuerl, a Roman Catholic Archbishop of Washington, a corporation sole, Appellant
Washington Metropolitan Area Transit Authority and Paul J. Wiedefeld, in his official capacity as General Manager of the Washington Metropolitan Area Transit Authority, Appellees
March 26, 2018
from the United States District Court for the District of
Columbia (No. 1:17-cv-02554)
D. Clement argued the cause for appellant. With him on the
briefs were Michael F. Williams and Kasdin M. Mitchell.
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
A. Shores was on the brief for amici curiae Becket Fund for
Religious Liberty, et al. in support of appellant.
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
Before: Rogers, Kavanaugh [*] and Wilkins, Circuit Judges.
Rogers, Circuit Judge.
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.
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
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 (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).
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.
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.
"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 arrival with the
first Christmas, we renew our ardent desire for Christ's
second coming." Timoney Decl. ¶ 5.
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
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 favor of granting
injunctive relief, including because the Archdiocese's
"irreparable harm argument rises and falls with its
merits arguments." Id. at 116.
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).
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.
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)."
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.
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 ...