Kevin Daley, DCNF

The Department of Justice filed a brief Tuesday supporting the Catholic Archdiocese of Washington’s challenge to public transportation guidelines that prohibit explicitly religious advertisements on Washington buses.

The Washington Metro Area Transit Authority (WMATA), the agency which administers bus and subway service in the D.C. metro area, does not run ads that promote religious observance. The archdiocese claims the policy is unconstitutional viewpoint discrimination.

“As the Supreme Court has made clear, the First Amendment prohibits the government from discriminating against religious viewpoints,” Associate Attorney General Rachel Brand said in a statement attending the filing. “By rejecting the archdiocese’s advertisement while allowing other Christmas advertisements, WMATA engaged in unconstitutional viewpoint discrimination.”

The archdiocese brought the case after WMATA refused to run advertisements promoting its “Find the Perfect Gift” holiday campaign, which encourages participation in Catholic Christmas observances. The U.S. Court of Appeals for the D.C. Circuit declined to issue an injunction against WMATA, finding that the archdiocese failed to prove the agency favors secular Christmas views over religious ones. They further said the policy does not appear to burden religious practice.

The department’s brief stresses that the message featured on the proposed advertisement, “Find the Perfect Gift,” is not itself inherently religious, and could just as easily be used in a secular context. Therefore, they claim, the agency is discriminating strictly on the basis of religious view.

“Under WMATA’s view, two otherwise identical advertisements with the same underlying message—for instance, two ads encouraging gift giving or charitable donations during the holiday season—could be construed as addressing entirely different ‘subjects’ as long as they used different Christmas symbols reflecting different purposes for giving gifts or making charitable donations,” the brief reads.

Former Solicitor General Paul Clement represents the archdiocese. Oral argument is expected before the D.C. Circuit in early spring.

The department intervened in a separate religious liberty controversy in 2017, filing an amicus brief in support of a Christian baker seeking a First Amendment exemption from a state public accommodations law. The Supreme Court heard arguments in that case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Dec. 5. A decision is expected by June.

Editor’s note: This reporter’s fiancee is employed by a firm involved in this litigation.

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