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

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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

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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

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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

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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

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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

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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

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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.