                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
ARCHDIOCESE OF WASHINGTON,          )
                                     )
                  Plaintiff,         )
                                     )
      v.                             )  Civil Action No. 17-2554 (ABJ)
                                     )
WASHINGTON METROPOLITAN              )
AREA TRANSIT AUTHORITY, et al.,      )
                                     )
                  Defendants.        )
____________________________________)

                                 MEMORADUM OPINION

       This case, brought by the Archdiocese of Washington, Donald Cardinal Wuerl, Roman

Catholic Archbishop of Washington, involves the plaintiff’s desire to publish an advertisement

that conveys a religious message on government property: the exterior of a public bus.




       Plaintiff seeks to place the advertisement on buses operated by the Washington

Metropolitan Transit Authority (“WMATA”) as part of the Archdiocese’s “Find the Perfect Gift”

Christmas campaign.     As the Secretary for Pastoral Ministry and Social Concerns for the

Archdiocese, Dr. Susan Timoney, explains in her declaration to the Court:
               The Find the Perfect Gift campaign is an important part of the
               Archdiocese’s evangelization efforts. . . . The campaign seeks to invite the
               public to consider the spiritual meaning of Christmas, to consider
               celebrating Advent/Christmas by going to Mass at one of our parishes
               and/or joining in one of our many outreach programs that care for the most
               vulnerable and poor during Advent and beyond.1

WMATA has rejected these ads on the basis that they are inconsistent with the agency’s existing

advertising Guidelines, in particular, the Guideline that prohibits “[a]dvertisements that promote

or oppose any religion, religious practice or belief.”2

       The Archdiocese has filed a five count complaint that asks the Court to declare the

Guideline to be unconstitutional, and because the advertising campaign is specifically tied to the

liturgical season of Advent, which has already begun, it has moved for a temporary restraining

order and preliminary injunction that would direct WMATA to immediately accept the

advertisements. Emergency injunctive relief is an extraordinary remedy that may only be awarded

based on a substantial showing that the plaintiff is likely to succeed on the merits of the claims in

its lawsuit, so the Court must determine at this early stage whether plaintiff is likely to be able to

prove that its constitutional or statutory rights are being violated.

        Plaintiff cannot carry that burden. The Court recognizes that plaintiff’s pursuit of the

advertising campaign is a manifestation of its faith, but the case does not turn upon whether the

message has value, or whether the Court anticipates that it will be well-received or it will offend.

The dispute must be decided in accordance with Supreme Court precedent and the binding

decisions of the D.C. Circuit, and the applicable constitutional principles are quite clear.




1      Decl. of Dr. Susan Timoney, S.T.D., Ex. 2 to Compl. [Dkt. # 1-2] ¶¶ 4–6 (“Timoney
Decl.”).

2     WMATA, Guidelines Governing Commercial Advertising (2015), https://www.wmata.
com/about/records/upload/Advertising_Guidelines.pdf. (“WMATA Guidelines”)
                                                   2
 
       First, it is well-established that private religious speech is as fully protected under the Free

Speech Clause as secular private expression. And when government property is fully open to the

public as a place to express its views, the government may not discriminate among prospective

speakers based upon the subject matter they wish to address or the viewpoint they intend to convey.

But, when government property has not been designated or made available for broad public use

for communicative purposes, different rules apply. Control over access to a nonpublic or limited

forum may be based on the subject to be discussed as long as: the lines drawn are reasonable given

the purpose of the forum involved, they do not favor one viewpoint over another, and they are

consistently applied.

       It is also settled as a matter of law that the exterior of a bus is not a public forum open to

anyone who wishes to address any topic. The Archdiocese conceded this at the hearing on the

motion. WMATA determined two years ago, after polling the community, that it will not accept

advertisements related to such potentially divisive topics as politics or religion. A government

agency may restrict the use of its property based on the content of the message to be broadcast as

long as the restriction is neutral and reasonable. This is not a high threshold to overcome. Since

the restriction does not silence or restrict any particular viewpoint, and it grew out of well-founded

concerns for the safety of the public and WMATA employees, as well as a desire to reduce

vandalism and the administrative burdens involved with spending significant time reviewing

proposed ads, the Guideline meets the test that it be neutral and reasonable.

       Plaintiff suggests that its understated campaign, “a simple message of hope, welcoming all

to Christmas Mass or in joining in public service,”3 is hardly objectionable, but divisive is in the

eye of the beholder, and if WMATA were to make distinctions based on its own judgment about



3      Pl.’s Mot. for TRO & Prelim. Inj. [Dkt. # 2] (“Pl.’s Mot.”) at 10.
                                                  3
 
which religious statements were likely to offend, it would be making the very sort of determination

that plaintiff insists that the Constitution forbids. Thus, WMATA’s decision comports with the

law that this Court is bound to follow in interpreting the Free Speech Clause of the First

Amendment.

       Faced with this legal landscape, plaintiff attempts to reframe the issue by arguing that

WMATA is not enforcing a neutral content-based prohibition at all, but that it is denying the

Archdiocese the opportunity to express its particular religious viewpoint about a general topic that

others are freely permitted to discuss on bus property: Christmas. Plaintiff does not point to any

specific commercial advertisements that are currently appearing, but it posits that since WMATA

would accept commercial advertising during the Christmas season, the agency has welcomed the

expression of the secular “viewpoint” that the holiday should be commercialized, and therefore, it

cannot exclude the opposing viewpoint that members of the public should connect with the

spiritual origins of Christmas instead. While it is true that a governmental organization may not

open its doors to the discussion of a certain subject and then exclude the expression of the religious

perspective on that subject, that is not what is happening here, and WMATA’s approach is, in fact,

viewpoint-neutral.

       Plaintiff’s description of both sides of this hypothetical conversation is not persuasive.

Commercial advertisements do not by definition express a viewpoint or perspective about the true

meaning of Christmas or how it should be observed; they suggest to potential shoppers – who fall

at every point along the religious spectrum, and who may choose to purchase gifts in December




                                                  4
 
for a multitude of faith-based or secular reasons – where to shop or what to buy.4           And, the

Archdiocese’s proposed advertising campaign is not commentary about some other permissible

topic – a topic other than religion – from a religious perspective; it is plainly a statement about

religion from a religious perspective. Therefore, WMATA’s decision did not violate the

Archdiocese’s First Amendment right to freedom of speech.

        With respect to the Archdiocese’s claim that its religious rights are being violated, it is

axiomatic that the government cannot favor one religion over another without running afoul of the

Establishment Clause. The government cannot specifically target or selectively burden a practice

because of its religious motivation without violating the Free Exercise Clause, and the Religious

Freedom Restoration Act ensures that the federal government cannot compel religious adherents

to take actions that would violate their sincerely held religious beliefs, even if the regulation being

resisted is neutral in its intent and broadly applied.

        WMATA’s policy does none of those things. Neither the Guideline nor its application in

this case interferes with plaintiff’s right to practice its religion in any way, and it does not compel

the Archdiocese to take any action that burdens its sincere religious convictions. The Guideline

does not establish any preference for or against one religion over another, and it is neutral and

generally applicable, and therefore, WMATA’s decision in this case does not violate either the

Constitution or RFRA.




4        Also, the record does not contain any examples of seasonal retail advertisements on
Metrobuses, and it does not reveal what they might say or whether there are any that refer to
Christmas. So it is difficult to determine whether they convey a viewpoint or what it might be, or
to find that the predicate for plaintiff’s claimed need to present a countervailing religious viewpoint
has been established.
                                                   5
 
       Plaintiff acknowledges that its advertisement promotes religion and sends a religious

message, and therefore, it falls squarely within the prohibition in the Guideline.5 But plaintiff

maintains that the Guideline has been discriminatorily and arbitrarily enforced, favoring other

religious advertisements over those sponsored by the Catholic Archdiocese, and that therefore, it

is invalid on its face and as applied. But the record does not support this contention. None of the

advertisements plaintiff highlights to make that point – neither the ads heralding the opening of

another CorePower Yoga fitness studio in Clarendon, Virginia (“Muscle + Mantra”), nor the ads

soliciting contributions to the Salvation Army’s Red Kettle effort (“Give Hope. Change Lives”)

“promote or oppose any religion.” While the Salvation Army is a Christian organization, and its

charitable efforts, like those of the Archdiocese and other religious organizations, may be

motivated in some measure by religious beliefs, the ads it chose to display on the buses do not

promote or advance religion. Therefore, WMATA’s policy is not likely to be found to violate the

First Amendment or the Equal Protection Clause on the grounds that it has been inconsistently

applied. And plaintiff does not argue at this stage of the litigation that the prohibition could violate

the Due Process Clause in some other way if it satisfies the First Amendment.




5       At one point, plaintiff took pains to emphasize the understated nature of its proposed
advertisement. See Compl. ¶ 11 (stating that “the advertisements depict, in minimalist style, a
starry night, with silhouettes of a small group of shepherds and sheep standing on a hill”); see also
McFadden Decl. ¶ 18 (stating that the advertisements “do not convey an overt religious message
on their face”); Pl.’s Mot. at 16 (“The Archdiocese has sought to convey a message of hope and
charity for the Christmas season and it has done so with a simple image of shepherds in the night.”).
But plaintiff could not have it both ways. The religious essence of the message is fundamental to
plaintiff’s claims that its First Amendment rights have been violated and that it has suffered
irreparable harm. See Compl. ¶ 35 (“arbitrary enforcement of WMATA’s policy violates the
Archdiocese’s First Amendment right by prohibiting it from emphasizing the religious reasons for
the season”); see also Compl. ¶ 42 (“the prohibition . . . violates the Free Exercise Clause of the
First Amendment by disfavoring religious speech”); Compl. ¶ 49 (“the prohibition . . . places a
substantial burden on the Archdiocese’s exercise of its religion”).


                                                   6
 
       For all of these reasons, to be explained in more detail below, the Court finds that plaintiff

is not likely to succeed on the merits of its claims, and it has not shown that it will be irreparably

harmed by the violation of its rights, so the motion for injunctive relief will be denied.

                                         BACKGROUND

       Defendant WMATA operates the Metrorail and Metrobus systems in the Washington, D.C.

metropolitan area pursuant to an interstate compact between Maryland, Virginia, and the District

of Columbia. Compl. [Dkt. # 1] ¶ 7. To fund its operations, WMATA sells advertising space on

its buses and trains. Decl. of Lynn M. Bowersox, Assistant General Manager for Customer

Service, Communications, and Marketing at WMATA, in Supp. of Defs.’ Opp. to Mot. for TRO

& Prelim. Inj. [Dkt. # 10-1] (“Bowersox Decl.”) ¶ 3. Prior to May 2015, WMATA accepted paid

advertisements that were religious and political in nature in addition to purely commercial ones.

Compl. ¶ 20; Defs.’ Opp. to Mot. for TRO & Prelim. Inj. [Dkt. # 10] (“Defs.’ Opp.”) at 5. On

May 28, 2015, WMATA’s Board of Directors adopted a motion by its Chair to temporarily

suspend all issue-oriented advertising, including all “political, religious and advocacy advertising”

until the end of that year while it conducted further review and solicited public comment. See

Resolution, Ex. A to Defs.’ Opp. [Dkt. # 10-3]. The complaint alleges that at the conclusion of

that process, “WMATA staff recommended extending the ban because of concerns that issue-

oriented advertising could provoke community discord, create concern about discriminatory

statements, and generate potential threats to safety and security from those who [sought] to oppose

the advertising messages.” Compl. ¶ 22; see also Bowersox Decl. ¶ 9 (“[WMATA’s] review

ultimately concluded that the economic benefits of such issue-oriented ads, including ads

promoting religion, were outweighed by four considerations: community and employee

opposition, security risks, vandalism, and administrative burdens.”). On November 19, 2015,



                                                  7
 
WMATA’s Board of Directors voted to make its prohibition on issue-oriented advertising

permanent. Ex. B to Defs.’ Opp. [Dkt. # 10-3]; Compl. ¶ 22.

       The Guidelines that have been in force since that time prohibit advertisements on a number

of topics. Of particular relevance here, Guidelines 9 through 14 provide:

               9.   Advertisements intended to influence members of the public regarding
                    an issue on which there are varying opinions are prohibited.

               10. Advertisements of tobacco products are prohibited . . . .

               11. Advertisements that support or oppose any political party or candidate
                   are prohibited.

               12. Advertisements that promote or oppose any religion, religious practice
                   or belief are prohibited.

               13. Advertisements that support or oppose an industry position or industry
                   goal without any direct commercial benefit to the advertiser are
                   prohibited.

               14. Advertisements that are intended to influence public policy are
                   prohibited.

See WMATA Guidelines.

       On October 23, 2017, the Archdiocese contacted WMATA’s third-party vendor about

buying advertising space on the taillights of public buses as part of its “Find the Perfect Gift”

campaign. Compl. ¶ 16. According to the Archdiocese, “[t]he Find the Perfect Gift Campaign is

an important part of the Archdiocese’s evangelization efforts.”        Timoney Decl. ¶ 4. “The

advertisements . . . encourage individuals to return to church during Advent and to give charitably

in their communities.” Pl.’s Mot. for TRO & Prelim. Inj. [Dkt. # 2] (“Pl.’s Mot.”) at 6. That

message is delivered through a number of platforms, “includ[ing] advertisements and materials for

distribution in parishes within the Archdiocese, advertisements for display in public places

throughout the metropolitan area,” including transit shelters not owned by WMATA, and an

“integrated online campaign.”     Decl. of Edward McFadden, Ex. 1 to Compl. [Dkt. # 1-1]

                                                8
 
(“McFadden Decl.”) ¶¶ 3, 6. On October 23, 2017, plaintiff submitted the following ad to

WMATA’s third-party vendor, which directs the public to the Find the Perfect Gift Campaign

website and hashtag:




McFadden Decl. ¶ 7; Ex. D to McFadden Decl.

       When one follows the link, the landing page of the website features a banner across the top

of the page: “JESUS is the perfect gift. Find the perfect gift of God’s love this Christmas.” The

homepage then offers a choice of links to “FIND” (“The Perfect Gift”); “DISCOVER” (“Advent

and Christmas Traditions”), and “GIVE” (“The Perfect Gift.”). See Find the Perfect Gift, https://

www.findtheperfectgift.org (last visited Dec. 8, 2017). The “FIND” page states:

               God has prepared an amazing gift for you. A place of peace, joy, and
               community with God and others. In the frenzy of buying gifts for others,
               take time to receive God’s love for you at Christmas Mass. Find Christmas
               Mass times throughout the Archdiocese of Washington using the map
               below!

Id. The “DISCOVER” page describes ways to observe Christmas and Advent, and the “GIVE”

page details many opportunities available through Catholic Charities in the Archdiocese of

Washington to “[s]hare the joy of Christmas . . . by helping others.” Id.

       According to the plaintiff on October 24, 2017, WMATA’s third-party vendor informed

plaintiff that its proposed ad would not meet WMATA’s Guidelines and could not run as

submitted. McFadden Decl. ¶ 13; Ex. G to McFadden Decl. The Archdiocese responded that it

                                                 9
 
did not “see a way to adjust the ad given its purpose and message” and asked whether there was a

way to appeal the decision. Ex. G to McFadden Decl. The third-party vendor sent plaintiff’s

proposed ad to WMATA for further review, and upon review of the ad, WMATA concluded that

the ad violated Guideline 12 and denied plaintiff’s request on November 8, 2017. McFadden Decl.

¶ 15; Ex. G to McFadden Decl.6 In response, plaintiff’s counsel sent a letter to the general counsel

of WMATA raising First Amendment concerns and urging the agency to reverse its decision

quickly because the season of Advent was imminent. Compl. ¶ 18; Ex. H to McFadden Decl. On

November 20, 2017, WMATA, through its counsel, again denied the request. Ex. I to McFadden

Decl.

        A week later, on November 28, 2017, plaintiff filed a complaint with this Court. The

complaint raises five constitutional and statutory claims:7 Count I alleges that Guideline 12, on its

face and as applied, violates plaintiff’s right to freedom of expression under the Free Speech Clause

of the First Amendment. Count II alleges that Guideline 12, on its face and as applied, violates the

Free Exercise Clause of the First Amendment. Count III alleges that Guideline 12 substantially

burdens plaintiff’s right to exercise its religion in violation of the Religious Freedom Restoration

Act, 42 U.S.C. § 2000bb. Count IV alleges a violation of plaintiff’s rights under the Equal



6      A declaration submitted by WMATA in opposition to the motion stated that WMATA
“reviewed the content of https://www.findtheperfectgift.org/ as it existed at the time” the ad was
submitted and “based on the ad and the website,” WMATA found that the ad violated Guideline
12 and rejected it. Bowersox Decl. ¶¶ 19–20.

7       Plaintiff’s motion for a temporary restraining order and preliminary injunction also
predicates its claim for relief on the Establishment Clause, but there is no Establishment Clause
claim in the complaint, so the Court cannot rule on its likelihood of success. See Fed. R. Civ. P.
8(a)(2) (“A pleading that states a claim for relief must contain . . . a short and plain statement of
the claim showing that the pleader is entitled to relief.”). In any event, plaintiff’s Establishment
Clause argument is identical to its Free Speech and Equal Protection claims based on the alleged
inconsistent and/or discriminatory enforcement of the Guideline.


                                                 10
 
Protection Clause of the Fifth Amendment, and Count V alleges a deprivation of life, liberty or

property without due process in violation of the Due Process Clause. See Compl. ¶¶ 28–64. Based

on these claims, plaintiff seeks the following relief:

               1. A declaration that Guideline 12 “violates the rights of the Archdiocese
                  under the Free Speech Clause of the First Amendment;”

               2. A declaration that Guideline 12 “violates the rights of the Archdiocese
                  under the Free Exercise Clause of the First Amendment;”

               3. A declaration that Guideline 12 violates the Religious Freedom
                  Restoration Act;

               4. A declaration that Guideline 12 “violates the rights of the Archdiocese
                  under the Equal Protection principles of the Fifth Amendment;”

               5. A declaration that Guideline 12 “violates the rights of the Archdiocese
                  under the Due Process Clause of the Fifth Amendment;”

               6. An “injunction preventing Defendants from enforcing” Guideline 12 “to
                  reject the Archdiocese’s request to purchase advertising space for the
                  ‘Find the Perfect Gift’ campaign;”

               7. An “award of attorney’s fees and costs to the Archdiocese;” and

               8. “[O]ther relief as the Court may deem just and proper”
Compl. at 16–17.

       At the time plaintiff filed its complaint, it also filed a motion for a temporary restraining

order and preliminary injunction asking that the Court order WMATA to run its proposed ad “as

soon as possible” since the beginning of Advent, December 3, 2017, was only a few days away.

Defendants filed their opposition to plaintiff’s motion on December 4, 2017 and plaintiff replied




                                                  11
 
on December 5, 2017. Reply to Defs.’ Opp. [Dkt. # 12] (“Pl.’s Reply”). On December 5, 2017,

the Court held a hearing on the motion.8

                                    STANDARD OF REVIEW

      A preliminary injunction is an “extraordinary and drastic remedy” that is “never awarded as

[a matter] of right.” Munaf v. Geren, 553 U.S. 674, 689–90 (2008) (citations omitted). A party

seeking a preliminary injunction must establish the following: 1) it is likely to succeed on the

merits; 2) it is likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance

of equities tips in its favor; and 4) an injunction serves the public interest. Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008).

      The manner in which courts should weigh the four factors “remains an open question” in

this Circuit. Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014). The Court of Appeals has

long adhered to the “sliding scale” approach, where “a strong showing on one factor could make

up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011).

But because the Supreme Court’s decision in Winter “seemed to treat the four factors as

independent requirements,” the Court of Appeals has more recently “read Winter at least to suggest

if not to hold ‘that a likelihood of success is an independent, free-standing requirement for a

preliminary injunction.’” Id. at 392–93, quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d

1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring). Although the D.C. Circuit has not yet

announced whether the “‘sliding scale’ approach remains valid after Winter,” League of Women

Voters v. Newby, 838 F.3d 1, 7 (D.C. Cir. 2016), the Court of Appeals has ruled that a failure to

show a likelihood of success on the merits is sufficient to defeat a motion for a preliminary



8      The record has been supplemented with the Declaration of Robert O. Potts, in Support of
Defendant’s Opposition [Dkt. # 13], the Declaration of Michael F. Williams [Dkt. # 14], and the
Declaration of Rex S. Heinke [Dkt. # 15].
                                                  12
 
injunction. See Ark. Dairy Co-op Ass’n, Inc. v. U.S. Dep’t of Agric., 573 F.3d 815, 832 (D.C. Cir.

2009); Apotex, Inc. v. FDA, 449 F.3d 1249, 1253–54 (D.C. Cir. 2006). As another court in this

district has observed, “‘[i]t is particularly important for the movant to demonstrate a substantial

likelihood of success on the merits,’ because ‘absent a substantial indication of likely success on

the merits, there would be no justification for the Court’s intrusion into the ordinary processes of

administration and judicial review.’” Navistar, Inc. v. EPA, No. 11-cv-449, 2011 WL 3743732,

at *3 (D.D.C. Aug. 25, 2011), quoting Hubbard v. United States, 496 F. Supp. 2d 194, 198 (D.D.C.

2007) (internal edits omitted).

         Regardless of whether the sliding scale framework applies, it remains the law in this Circuit

that a movant must demonstrate irreparable harm, which has “always” been “the basis of injunctive

relief in the federal courts.” Sampson v. Murray, 415 U.S. 61, 88 (1974), quoting Beacon Theatres,

Inc. v. Westover, 359 U.S. 500, 506 (1959) (internal edits omitted). A failure to show irreparable

harm is grounds for the Court to refuse to issue a preliminary injunction, “even if the other three

factors entering the calculus merit such relief.” Chaplaincy of Full Gospel Churches v. England,

454 F.3d 290, 297 (D.C. Cir. 2006).

                                             ANALYSIS

    I.       Count One: The Freedom of Speech Clause of the First Amendment  
              
             A. Advertising space on a WMATA Metrobus is a nonpublic or limited forum.

         Since the advertisement plaintiff wants to run is on a public bus, this case is governed by

the case law concerning free expression on government property. It is well established that the

“First Amendment does not guarantee access to property simply because it is owned or controlled

by the government.” U.S. Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129

(1981). When analyzing whether restrictions of speech on government property violate the First


                                                  13
 
Amendment, courts apply the public forum doctrine. Initiative & Referendum Inst. v. U.S. Postal

Serv., 685 F.3d 1066, 1070 (D.C. Cir. 2012). The public forum doctrine divides government

property into three separate categories: 1) traditional public forums, 2) designated public forums,

and 3) nonpublic forums. Id. The categorical designation of the forum will determine the level of

scrutiny courts apply to any restrictions on private speech. See Cornelius v. NAACP Legal Def. &

Educ. Fund, Inc., 473 U.S. 788, 800 (1985).

       “Traditional public forums” are “[p]laces which by long tradition or by government fiat

have been devoted to assembly and debate.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,

460 U.S. 37, 45 (1983).      Streets and parks are “quintessential public forums” that “have

immemorially been held in trust for the use of the public, and . . . have been used for purposes of

assembly, communicating thoughts between citizens, and discussing public questions.” Id.,

quoting Hague v. CIO, 310 U.S. 496, 515 (1939). “Designated public forums” come into being

when, “government property that has not traditionally been regarded as a public forum is

intentionally opened up for that purpose,” Pleasant Grove City v. Summum, 555 U.S. 460, 469

(2009), in other words, for the purpose of “expressive activity.” Perry Educ. Ass’n, 460 U.S. at

45.

       Courts apply a strict scrutiny standard when evaluating speech restrictions imposed on the

use of a traditional or designated public forum. See Pleasant Grove City, 555 U.S. at 469–70.

Under this standard, restrictions “must be content-neutral, narrowly tailored to serve a significant

governmental interest, and allow for sufficient alternative channels of communication.” Cmty. for

Creative Non-Violence v. Turner, 893 F.2d 1387, 1390 (D.C. Cir. 1990), citing Ward v. Rock

Against Racism, 491 U.S. 781, 789 (1989). When that standard is applied, the Supreme Court “has

generally struck down governmental discrimination among the ‘proper’ subjects for expressive



                                                14
 
activity.” U.S. Sw. Africa/Namibia Trade & Cultural Council v. United States, 708 F.2d 760, 763

(D.C. Cir. 1983).

       A different standard governs “nonpublic forums” which are “not by tradition or designation

a forum for public communication.” Perry Educ. Ass’n, 460 U.S. at 46. As the D.C. Circuit has

observed, the Supreme Court has characterized “prisons, military bases, and buses” as nonpublic

forums. U.S. Sw. Africa/Namibia Trade & Cultural Council, 708 F.2d at 763. “In these places 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.’” Initiative & Referendum Inst., 685 F.3d at

1070, quoting Perry Educ. Ass’n, 460 U.S. at 46; see also U.S. Sw. Africa/Namibia Trade &

Cultural Council, 708 F.2d at 763 (courts have “sustained the use of subject matter restrictions

provided that they are reasonably designed to limit expressive activities to uses compatible with

the public facilities’ intended purposes and not imposed to suppress expression simply because

public officials oppose the speaker’s particular point of view”).

        In other words, if the forum “is not a public forum, the regulation will be upheld as long

as the restrictions are reasonable and are not directed at opposing the views of particular

individuals.” Cmty. for Creative Non-Violence, 893 F.2d at 1390.

       As the Archdiocese acknowledged at the hearing on this motion, at the time it proposed to

purchase advertising space, the exterior of a Metrobus was not a public forum or a designated

public forum. In determining the forum designation of a particular government resource, a court

must evaluate the government’s intent for the forum as evidenced by its “policy and practice” and

“the nature of the [government] property and its compatibility with expressive activity.” Cornelius,




                                                15
 
473 U.S. at 802. Thus, the history of WMATA’s approach to advertising space on its buses and

trains is relevant to this conclusion.

        Prior to 2015, WMATA accepted a wide array of political, issue-oriented and religious ads.

In light of this practice and policy, the Court of Appeals ruled in 1984 that WMATA’s advertising

space was a public forum. Lebron v. Wash. Metro. Area Transit Auth., 749 F.2d 893, 896 (D.C.

Cir. 1984) (“There is no . . . question that WMATA has converted its subway stations into public

fora by accepting . . . political advertising.”).

        In 2015, however, WMATA changed its policy. As the declarations and exhibits supplied

in opposition to the motion for injunctive relief explain, WMATA became increasingly concerned

that issue-oriented ads were disrupting its operations and undermining its core mission of

providing safe and reliable public transportation. In May 2015, its Board of Directors adopted a

motion by its Chair to temporarily suspend all issue-oriented advertising, including political and

religious ads, pending review and public comment. See Resolution. After completing its review,

the Board approved a new set of guidelines on November 19, 2015. See Guidelines. In addition

to providing guidance concerning commercial advertisements, the Guidelines impose a permanent

bar on all political, religious, and issue-oriented ads. See Guidelines 9, 11, 12, 14. With respect

to religion in particular, Guideline 12 provides: “Advertisements that promote or oppose any

religion, religious practice or belief are prohibited.” Id. The adoption of this Guideline had the

effect of transforming what was once a designated public forum into a nonpublic forum. See

Cornelius, 473 U.S. at 805 (the “historical background indicates” that WMATA’s Guidelines were

“designed to minimize the disruption” caused by the prior ad policy and to “lessen[ ] the amount of

expressive activity occurring on federal property”).




                                                    16
 
        This conclusion is consistent with the Supreme Court’s ruling in Lehman v. City of Shaker

Heights, 418 U.S. 298 (1974). In Lehman, petitioner challenged a policy that prohibited political

advertising on city buses on First Amendment grounds. The Court ruled that advertising space on

a public bus was not a public forum because the city had “consciously . . . limited access to its

transit system advertising space in order to minimize chances of abuse, [and] the appearance of

favoritism.” 418 U.S. at 304.

               Here, were have no open spaces, no meeting hall, park, street corner, or
               other public thoroughfare. Instead, the city is engaged in commerce. It must
               provide rapid, convenient, pleasant, and inexpensive service to the
               commuters . . . . The [advertising] space, although incidental to the
               provision of public transportation, is a part of the commercial venture. . . .
               [A] city transit system has discretion to develop and make reasonable
               choices concerning the type of advertising that may be displayed in its
               vehicles.

Id. at 303.

        This ruling is also consistent with a recent ruling of another court in this district and one in

the Southern District of New York. See Am. Freedom Def. Initiative v. WMATA, 245 F. Supp. 3d

205, 209–211 (D.D.C. 2017) (holding that WMATA became a nonpublic forum once it amended

its Guidelines in 2015); Am. Freedom Def. Initiative v. Metro. Transp. Auth., 109 F. Supp. 3d 626,

628 (S.D.N.Y. 2015), aff’d, 815 F.3d 105 (2d Cir. 2016) (noting that, while the case before it was

moot, since the New York Metropolitan Transportation Authority “no longer accepts any political




                                                  17
 
advertisements,” it was “likely” no longer a “designated public forum,” but rather, a nonpublic or

limited public forum).9

       Plaintiff maintains in its motion that at an “absolute minimum, WMATA’s exterior bus

displays constitute a limited public forum[.]” Pl.’s Mot. at 13. But both parties agree that the same

test would apply to a “limited public forum” and to a “nonpublic forum.” Pleasant Grove City,

555 U.S. at 470 (if “a forum . . . is limited to use by certain groups or dedicated solely to the

discussion of certain subjects,” then speech restrictions need only be “reasonable and viewpoint

neutral”).

       Because the Court finds that WMATA’s advertising space is a nonpublic or limited forum,

it must go on to evaluate whether Guideline 12 is viewpoint neutral and reasonable. Cornelius,

473 U.S. at 800.

       B. Guideline 12 is viewpoint neutral.

       “[C]ontrol over access to a nonpublic forum can be based on subject matter and speaker

identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum

and are viewpoint neutral.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S.

384, 392–3 (1993), quoting Cornelius, 473 U.S. at 806. (“Although a speaker may be excluded

from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the

forum or if he is not a member of the class of speakers for whose especial benefit the forum was



9       Plaintiff noted in its motion that the D.C. Circuit ruled in Community for Creative Non-
Violence that subway stations are “public fora, either in traditional terms or by designation.” Pl.’s
Mot. at 13. It also argued, without citation, that because buses travel on public streets, and can be
seen from the streets and the sidewalks, they qualify as traditional public fora. Id.; Pl.’s Reply
at 2. By plaintiff’s logic, all government property that can be seen from the street would become
a public forum. But during the preliminary injunction hearing, plaintiff walked away from its
position that the bus could be a public forum and agreed that the exterior of the public bus was a
“limited public forum.”


                                                 18
 
created, the government violates the First Amendment when it denies access to a speaker solely to

suppress the point of view he espouses on an otherwise includible subject.”) (internal citations

omitted).

           As the Supreme Court has explained:

                  [I]n determining whether the State is acting to preserve the limits of the
                  forum it has created so that the exclusion of a class of speech is legitimate,
                  we have observed a distinction between, on the one hand, content
                  discrimination, which may be permissible if it preserves the purposes of that
                  limited forum, and, on the other hand, viewpoint discrimination, which is
                  presumed impermissible when directed against speech otherwise within the
                  forum’s limitations.

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829–30 (1995).

           Plaintiff appears to recognize that the law governing anything other than a viewpoint

restriction is unfavorable to its case – indeed, its memorandum does not even set out the low

threshold that would apply in the case of a content-based restriction in a limited public forum. It

seeks to avoid the application of these principles by characterizing WMATA’s action as a

viewpoint based decision, but the viewpoint cases are not analogous.

           Plaintiff relies heavily on Rosenberger. In that case, a university maintained a fund which

could be used to defray the costs of printing student publications, but it denied a student

organization publishing a newspaper with a Christian editorial viewpoint access to the fund. The

Supreme Court condemned the action as an unconstitutional violation of the First Amendment,

stating:

                  [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 prohibited perspective, not the general subject
                  matter, resulted in the refusal to make third-party payments, for the subjects
                  discussed were otherwise within the approved category of publications.

515 U.S. at 831.



                                                    19
 
       But in this case, religion is excluded as a subject matter, and it was that general subject

matter that led to the prohibition.

       In Lamb’s Chapel, the school district involved refused to permit a church to show a film

on school property concerning child rearing and family values – an otherwise permitted topic – for

the sole reason that the topic would be addressed from a religious perspective, and the Supreme

Court found that to be unconstitutional. 508 U.S. at 394. Similarly, in Good News Club v. Milford

Central School District, 533 U.S. 98 (2001), the school district had adopted a community-use

policy. The Court found that since the policy opened school property to events “pertaining to the

welfare of the community,” and thereby made any group that “promote[s] the moral and character

development of children” eligible to use the building, it could not deny meeting space for a club

promoting moral character for children sponsored by a private Christian organization. Id. at 108–

09. The Court observed that the organization intended to address permissible subject matter –

moral character – from a religious perspective, and it found the school district’s action to be

impermissible viewpoint-based discrimination. Id. at 111–12.

       But here, the boundaries of the forum are much more limited. The advertisement does not

seek to address a general, otherwise permissible topic from a religious perspective – the sole

purpose of directing the public to www.findtheperfectgift.org is to promote religion. The website

declares: “JESUS is the perfect gift. [F]ind the perfect gift of God’s love this Christmas” and

“[T]ake time to receive God’s love for you at Christmas Mass.”10 Indeed, plaintiff insists on this




10      The Archdiocese agreed at oral argument that the complaint specifically incorporates the
religious content of the website in its allegations concerning the content of the ad. See
Compl. ¶¶ 11, 19. But plaintiff also acknowledged that the images of the shepherds and the star
of Bethlehem are part of the iconography traditionally used to depict the night that Christ was born,
and that the ad, notwithstanding its simplicity, telegraphs a religious message even before one
takes the website into consideration.
                                                 20
 
characterization in its own memorandum. See Pl.’s Mot. at 6 (“The advertisements are part of a

larger campaign to encourage individuals to return to church during Advent and to give charitably

in their communities.”); id. at 15 (“[T]he Archdiocese’s campaign expresses the view that the

‘perfect gift’ during the Christmas season is devotion to God and service to others.”); and id. at 23

(the campaign is a “uniquely effective means of transmitting [the Archdiocese’s] message”).

       The Archdiocese argues nonetheless that WMATA has engaged in viewpoint-based

discrimination when renting out advertising space. It maintains that since WMATA is willing to

accept ordinary commercial advertisements during the holiday season, it publishes messages that

express a viewpoint promoting the commercialization of Christmas. So, the rejection of the

Archdiocese’s spiritual message concerning Christmas is the suppression of a religious viewpoint

on the same subject matter. But this is a strained analogy.

       Plaintiff’s argument is founded on a mischaracterization of what is happening on the side

of the bus. Advertisements that meet the Guidelines’ requirements for commercial advertisement

are just that: commercial advertisements. They proclaim:

               Shop here!

               Buy this!

       There is nothing in the complaint beyond plaintiff’s conclusory allegation that WMATA

accepts ads that “promote” commercialism that suggests that these ads convey a viewpoint on the

question of how Christmas should be observed – whether it should be more commercial, or more

true to its spiritual origins instead.    An ad for Macy’s does not communicate the Macy’s

perspective on the matter; while messages from retail establishments may be a manifestation of

the commercialization and consumerism that characterize our society in general, and they may

reflect the merchants’ aim to profit from the gift-giving activity, all that they convey is: if you are



                                                  21
 
buying a gift for any reason during the current season, bring your business to us. Plaintiff cannot

dispute that similar advertisements “encouraging consumers to buy more goods and services,”

Compl. ¶ 24, appear all year round, and they are not inherently inconsistent with a religious

perspective or with faith-based observance.11

       And on the other side of the supposed conversation, the Find the Perfect Gift campaign

does not offer the Archdiocese’s perspective on a subject that is addressed in commercial

messages. As the representatives of the Archdiocese make abundantly clear in their declarations,

what their ads were designed to do was to promote the Roman Catholic religion:

               The Find the Perfect Gift campaign is an important part of the
               Archdiocese’s evangelization efforts. Advent and Christmas are some of
               the biggest evangelizing moments we have all year, as people are more open
               to questions of faith and spiritual experiences during these seasons . . .

               The Roman Catholic Church teaches that when we celebrate the liturgy of
               Advent each year, we recall the centuries and millennia when the world


11      Another problem with plaintiff’s argument is that the complaint does not allege, nor do the
exhibits to the motion for injunctive relief reveal, that any ads related to shopping are actually
being displayed on the exterior of a Metro bus, or if they are, what they say or convey. So it is not
clear whether the purported viewpoint ads mention Christmas at all, whether they are cast in terms
of the broader holiday season, or whether they concern a different subject matter altogether. The
problem created by the absence of such information in the record became quite clear at oral
argument, when counsel’s ability to articulate what the viewpoint of any ad might be depended in
large part on how it was hypothetically worded or what it hypothetically depicted. Thus, the record
does not support the Archdiocese’s allegation that every commercial advertisement published in
December can be presumed to communicate a viewpoint about Christmas, much less that it
necessarily communicates one that is inimical to spirituality.
        Counsel concluded his argument at the hearing by making the point that if WMATA
accepts an advertisement seeking charitable donations – either “because” such donations are
beneficial to the recipient, or without any stated reason – the Archdiocese must be able to publish
an ad that expressly calls for contributions “because” the Church teaches that they are an
expression of faith. This argument left the strong impression that the Archdiocese would argue
that every commercial advertisement conveys a message about some secular topic, and therefore,
WMATA’s acceptance of any commercial advertisement would require it to broadcast a religious
reply that could be said to bear on that topic. This approach obliterates the distinction between
viewpoint-based and content-based restrictions, and it is not consistent with Supreme Court First
Amendment case law.


                                                 22
 
               awaited the arrival of the Messiah. By sharing in the long preparation for
               the Savior’s arrival with the first Christmas, we renew our ardent desire for
               Christ’s second coming . . .

               It is also critically import for the goals of the Find the Perfect Gift campaign
               that the Archdiocese spread its message as broadly as possible within the
               metropolitan area. The campaign seeks to invite the public to consider the
               spiritual meaning of Christmas, to consider celebrating Advent/Christmas
               by going to Mass at one of our parishes and/or joining in one of our many
               programs that care for the most vulnerable and poor during Advent and
               beyond.

Timoney Decl. ¶¶ 4–6.

       Since plaintiff has failed to allege facts that would show that WMATA rejected its

proposed advertisement solely to suppress a point of view that plaintiff sought to espouse on an

otherwise includible subject, see Cornelius, 473 U.S. at 806, the complaint does not allege the

existence of a viewpoint based restriction, and Count I rests on the validity of the broad prohibition

against any religious advertising. Since the content-based restriction on promoting or opposing

religion is neutral and reasonable, the Archdiocese is not likely to succeed on the merits of its Free

Speech claim.12




12      The Archdiocese argued on page 15 of its memorandum that even if the policy could be
construed as content-based discrimination and not viewpoint based, “it would still fail to satisfy
the First Amendment’s demands because such a wholesale banishment of religious content is
contrary to our constitutional tradition.” Pl.’s Mot. at 15. At the hearing, counsel argued that the
Good News Club decision stands for this proposition.
        While it is true that the Court announced at the start of the Good News Club opinion that it
granted certiorari to resolve a conflict in the Circuits as to whether speech can be excluded from a
limited public forum on the basis of the religious nature of the speech, 533 U.S. at 105, it did not
reach the question of whether such a blanket content-based prohibition would be unlawful.
Instead, it applied the principles set out in Lamb’s Chapel and Rosenberger to strike down the
school district’s action as impermissible viewpoint discrimination. Id. at 106. In Lamb’s Chapel,
the Court was presented with a school district rule that excluded religious use of the property
altogether, but it did not strike it down on the basis that the prohibition of religious content was
unconstitutional; it held that the rule was impermissibly applied to block the petitioner from
expressing its view on a subject that was otherwise permissible. 508 U.S. at 392-4.
                                                 23
 
           C. Guideline 12 is reasonable.

           A restriction on private speech in a nonpublic forum is “reasonable if it is 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 has emphasized that “[t]he

Government’s decision to restrict access to a nonpublic forum need only be reasonable; it need

not be the most reasonable or the only reasonable limitation.” Cornelius, 473 U.S. at 808 (emphasis

in original).

           After undertaking a review process and accepting public comment, WMATA concluded

that maintaining its advertising space as an open public forum was disruptive to WMATA’s core

mission of providing safe, reliable public transportation. In its opposition to plaintiff’s motion,

WMATA identifies the four reasons that motivated its decision: 1) community and employee

opposition, 2) security risks, 3) vandalism, and the 4) administrative burdens tied to spending

“substantial time” reviewing proposed ads. Bowersox Decl. ¶¶ 9–13. WMATA’s survey of the

public’s view on issue-oriented ads found that: 1) 98% of the public was familiar with the types of

ads featured on WMATA buses, trains, and stations; 2) 58% opposed issue-oriented ads, while

41% supported such ads; and 3) 46% were extremely opposed to issue-oriented ads, compared to

20% that were extremely supportive of issue-oriented ads. Id. ¶ 14. Ultimately, WMATA

concluded that these factors outweighed the “the economic benefits of [ ] issue-oriented ads.”

Id. ¶ 9.

           Plaintiff supplied the Court with an alternative regulation from another jurisdiction as an

example of a policy that did not exclude religion entirely and would therefore be more reasonable.

Ex. A to Pl.’s Reply. But the Court is not being asked, nor is it authorized, to make its own

judgment about what would be the most effective or the most appropriate approach to balancing

all of the competing concerns. The Supreme Court has made it clear that the inquiry is not whether
                                                   24
 
there might be another equally reasonable or even a more reasonable step to take, Cornelius, 473

U.S. at 808, and the fact that one county enacted a different policy that does not expressly mention

religion does not make WMATA’s decision unreasonable. WMATA had to take the area’s diverse

population and the many visitors who flock to the Nation’s capital – often to express their strong

political and religious views – into account. Moreover, the level of divisiveness and antagonism

in our social discourse, and the potential for violence, has likely increased since 2012 when King

County passed its policy.

       Plaintiff contends that WMATA’s reasons do not support the prohibition of religious ads

because “[r]eligious viewpoints do not carry an inherently greater risk of provoking community

discord, creating discriminatory statements, and generating safety threats.” Pl.’s Mot. at 16. It

also asserts, “[m]essages encouraging individuals to attend mass or confession are not inherently

more divisive than messages encouraging individuals to attend concerts or to shop.” Id. That may

well be the Archdiocese’s position. But even if one puts aside the role that religious differences

have played and continue to play in conflicts throughout history and across the globe, WMATA’s

experience with religious references on public transit gave it a reasonable basis to come to the

opposite conclusion. For example, WMATA proffered evidence that in 2001, when a group of

Catholics purchased an ad that was critical of the Church’s position on the use of condoms, it

received hundreds of complaints, including one from the plaintiff. Bowersox Decl. ¶ 25. WMATA

also points to controversy generated by advertisements promoting Islam in subway stations in New

York. Weisel Decl., Exh. L. to Def.’s Opp. By adopting Guideline 12, WMATA reasonably




                                                25
 
sought to reduce the number of complaints it received from employees and customers and to also

reduce the vandalism that strong reactions could provoke.13

       The WMATA Assistant General Manager for Customer Service, Communications, and

Marketing also averred that she heard from the Metro Transit Police Department and the U.S.

Department of Homeland Security that running certain issue-oriented ads could pose security risks

on trains and buses. Bowersox Decl. ¶ 11. One of the factors that spurred WMATA to close its

advertising forum was the submission of an ad featuring a cartoon depiction of the Prophet

Mohammad. Def.’s Opp. at 17. Drawing the Prophet Mohammed is highly offensive to Muslims,

and WMATA was aware that the ad was drawn at a contest where two gunmen were killed in an

attempt to prevent the event. Bowersox Decl. ¶ 11; Weisel Decl., Exh. M to Def.’s Opp.

       Given WMATA’s concerns about the risks posed by issue-oriented ads, including ads

promoting or opposing religion, its decision was reasonable. See Am. Freedom Def. Initiative v.

WMATA, 245 F. Supp. 3d at 213 (holding that WMATA’s prohibition on issue-oriented ads was

reasonable). The regulation is reasonably aligned with WMATA’s duty to provide safe, reliable

transportation in the Nation’s capital and surrounding areas, and it does not violate the First

Amendment. See, e.g., Lehman, 418 U.S. at 304 (“[T]he managerial decision to limit [bus

advertising] space to innocuous and less controversial commercial and service oriented advertising

does not rise to the dignity of a First Amendment violation.”).




13      This conclusion is reinforced by the fact that, as plaintiff emphasized, bus advertising is
“big, bold, [and] in your face every day.” McFadden Decl. ¶ 10.
                                                26
 
        D. Guideline 12 does not invite discriminatory enforcement on its face and it is not
           being discriminatorily applied here.
        The Archdiocese did not dispute at oral argument that its advertisement promotes religion

and is therefore covered by Guideline 12. However, it claims that WMATA’s use of its Guideline

violates the First Amendment on its face and as applied because it is not consistently enforced.

        The Guideline itself is short and clear and does not include the sort of subjective

terminology that could invite arbitrary or discriminatory enforcement.14

        The basis for plaintiff’s claim that the Guideline is flawed on its face is the same as its

argument that it is discriminatory as applied: other ads that allegedly promote or oppose religion

have been accepted. Plaintiff argues that the Guideline must be facially invalid if the word

“religion” has given rise to varying interpretations, and it complains that this discriminatory

enforcement violates the Free Speech Clause, the Establishment Clause and the Equal Protection

Clause. The problem with this argument is that while plaintiff’s proposed advertisement, as

plaintiff candidly acknowledges, promotes religion, the other ads do not.




14      The Court observes that this certainly cannot be said of the King County Department of
Transportation Transit Advertising Policy, Ex. A to Pl.’s Reply, which plaintiff touted as an
example of a reasonable policy. While the policy supplies, in excruciating detail, the specifics of
what might contravene the ban on “Sexual and/or Excretory Subject Matter,” id. § 6.2.3, it leaves
a great deal of what might qualify as “Demeaning or Disparaging,” id. § 6.2.8, or “Harmful or
Disruptive to Transit System,” id. § 6.2.9 up to the reviewer. See id. § 6.2.8 (“[F]or purposes of
determining whether an advertisement contains such material, the County will determine whether
a reasonably prudent person, knowledgeable of the County’s ridership and using prevailing
community standards, would believe that the advertisement contains material that ridicules or
mocks, is abusive or hostile to, or debases the dignity or stature of any individual, group of
individuals or entity.”) and id. § 6.2.9 (“[T]he County will determine whether a reasonably prudent
person, knowledgeable of the County’s ridership and using prevailing community standards,
would believe that the material is so objectionable that it is reasonably foreseeable that it will result
in harm to, disruption of or interference with the transportation system.”). While this purports to
be an objective, reasonable man standard, the invocation of the county ridership’s point of view
and community standards leaves considerably more room for arbitrary application than the word
“religion.”
                                                   27
 
       Plaintiff directs the Court to two advertisements that were accepted for the exterior of

Metro buses: one for the Salvation Army Red Kettle campaign and one for CorePower Yoga.

Plaintiff argues that the Salvation Army is a religious organization, and that yoga is a religious

practice or has religious origins, Pl.’s Mot. at 17–18, so WMATA was bound to accept the

Archdiocese’s ad as well.15

       But the inquiry is whether the advertisements promote religion. The Salvation Army

advertisement seeks charitable contributions and nothing more. Ex. E to Bowersox Decl.




The Red Kettle may be a well-known symbol of the season, but there is nothing religious about it.

The ad does not promote or oppose any religion or religious practice; while the Salvation Army

has a religious origin and affiliation, what the ad is promoting is the act of giving and the practical

effect on the recipient. While charitable giving is a fundamental tenet of many faiths, the

advertisement does not advance or reject any religious imperative or spiritual inspiration for the

activity it is seeking to encourage.




15      Plaintiff and the amici also argued that advertisements for performances of “The Book of
Mormon” fell within the prohibition since the musical disparages, or at least, pokes fun at, a
religion. Amicus Brief, Ethics and Pub. Policy Ctr. and First Liberty Inst. in Supp. of Pl.
[Dkt. # 11] at 6. Putting aside the fact that this is a somewhat cursory summary of the show, the
fact that there will be satire presented onstage does not transform a poster publicizing the existence
of the performance or the availability of tickets into a communication that itself promotes or
opposes a religion.


                                                  28
 
        CorePower Yoga is a chain selling memberships to “yoga fitness studios” that offer

“unique” hybrid workouts called “yoga-based fitness classes.” See https://www.corepoweryoga.

com/. The ad announcing the opening of a new location does not promote any religion or religious

practice or belief.16




Exhibit F to Bowersox Decl.




16     The choice of the slogan “Mantra + Muscle” does not change that assessment just because
the word mantra can mean a religious incantation.


                                              29
 
        Plaintiff urged the Court to look beyond the surface of the buses and to review the websites

of each organization because the links appear in the ads, and because the content of the

Archdiocese’s Find the Perfect Gift website has come into play in considering this motion.17 But

neither link is as intrinsic to the message of the ad as it is in plaintiff’s proposed ad, where the link

is the message. And, in any event, the website for the National Capital Area Command identified

on the Salvation Army’s signs, http://salvationarmynca.org/, is focused on fundraising and service.

Beyond the mission statement that it takes several clicks to reach, there is little content that is more

overtly religious than the ad, and therefore, even after accessing the website, it does not appear to

the Court that the Salvation Army ad falls within the Guideline.18

        Similarly, a review of the CorePower Yoga website reveals that no matter what the

religious origins of yoga may have been, or to what extent Hinduism, Buddhism, or any other

spiritual elements remain incorporated in yoga practice in the United States, religion is not what

is being offered at CorePower Yoga. The website is filled with references to “our version of yoga”



17      It is important to note that the Find the Perfect Gift link does not connect to the general
website for the Archdiocese of Washington, www.adv.org, but rather, it leads to a separate website
created specifically for the Advent campaign that was to be advanced by the proposed
advertisements. Thus, it is not analogous to the Salvation Army’s general website, which is not
what is being advertised in the Red Kettle ads.
        Moreover, plaintiff’s complaint and memorandum specifically refer to and incorporate the
content of the website and emphasize the message it conveys to support the argument that the
rejection of the ad suppresses a religious viewpoint, and that immediate injunctive relief is
warranted. See also Pl.’s Mot. at 6 (“The advertisements are part of a larger campaign to encourage
individuals to return to church during Advent and to give charitably in their communities.”); see
also Compl. ¶ 10 (“The goal of the campaign is to encourage individuals to seek spiritual gifts
during this Christmas season.”); id. ¶ 11 (“All of the advertisements refer to an Internet site,
FindThePerfectGift.org, which contains links to Mass schedules, opportunities for charitable
service, information about religious holiday traditions, and reflections on the meaning of the
Advent and Christmas seasons.”); and id. ¶ 26 (“The Find the Perfect Gift campaign has a purpose
and meaning that is tied intrinsically to the liturgical season of Advent.”). So it is hardly unfair to
take the content of the plaintiff’s website into consideration since that is the very content plaintiff
seeks to disseminate.


                                                   30
 
and “our unique style of yoga,” and it touts the potential physical benefits of its intensive

cardiovascular     workout    “based    on”    yoga    and   set   to   energizing   music.      See

https://www.corepoweryoga.com.19         It is about as distant from the ancient Indian religious

traditions that gave rise to yoga as Black Friday at Best Buy is from Bethlehem.


18       The homepage has a banner displaying various donation and service opportunities, and it
presents large links for “Volunteer,” “Get Help,” and “Events,” as well as smaller links to “About,”
“Ways to Give,” “Ways We Help,” “Volunteer,” etc.                         The Salvation Army,
http://www.salvationarmynca.org (last visited Dec. 8, 2017). The “About” page emphasizes
service: “The Salvation Army National Capital Area Command serves anyone in crisis in the
District, Suburban Maryland, and Northern Virginia. Whether it’s a hot meal, help paying a bill
or a more long-term solution, every county in the region includes either a Salvation Army Corps
or field office ready to help.” Id. From the “About” page, there are several links to “Learn More,”
including one to “Our Mission and Vision.” Id. The mission is plainly religious, while the vision
is more ecumenical:
                                                 Our Mission
                 The Salvation Army, an international movement, is an evangelical part of
                 the Universal Christian Church. Its message is based on the Bible. Its
                 ministry is motivated by the love of God. Its mission is to preach the gospel
                 of Jesus Christ and to meet human needs in His name without
                 discrimination.

                                                 Our Vision
                 To have a Greater Washington, DC area be a place where people of all ages
                 live in safe and sustainable communities in which differences are respected,
                 and people are empowered to learn, work, and worship in freedom.

Id. Plaintiff's reply points out that counsel for the Archdiocese was able, after clicking from the
home page to the “Find Us” page and then to the “Alexandria Corps” page, see Williams Decl. in
Support of Pl.’s Mot. [Dkt. 12-1] ¶ 6, to land upon a page on the Salvation Army site that sets out
the dates and locations for Spiritual Care and Worship in addition to describing the local corps’s
work in the community with homeless women. See http://salvationarmynca.org/alexandria-va/.
But that does not make the ad on the bus – which is a call for donations and not an exhortation to
visit the website or to join the Salvation Army – an ad promoting religion.

19      The CorePower homepage superimposes the words “CorePower Yoga – Live Your Power”
over a video of a studio full of well-chiseled men and women pumping hand-held weights while
assuming traditional yoga positions and stances. Choosing “The Experience” from the menu of
choices available on the homepage brings up a page that announces, “Discover Your Most
Powerful Inner Self: Inside our yoga fitness studios, something amazing is happening. With this
high intensity workout, you’ll push past physical boundaries with an open mind and a beating
heart, turning doubt into security, strangers into friends, and stress into sweat.” In addition to
                                                  31
 
        Based on the record before it, then, the Court finds that plaintiff is not likely to succeed on

its claim that its constitutional rights were violated by the inconsistent application of Guideline

12.20




incorporating weights, the classes at CorePower’s “yoga fitness studio” can further diverge from
traditional yoga practice when they are “set to an energizing playlist” or “incredible music.” As
the website informs those who “already love yoga,” “[w]e’ve held onto the magic of yoga, while
upping the intensity factor for a more powerful, purposeful workout. Take your yoga practice up
a notch with a renewed sense of focus and strength.” To those who are new to yoga, CorePower
explains that “[w]e believe in working every muscle and every emotion.” In the Frequently Asked
Question section, CorePower asks, “what are some of the benefits of yoga?” Answer: “There are
countless benefits to our style of yoga. You’ll turn stress into sweat, rigid into fluid, and our
community can turn strangers into friends. Plus, you’ll increase circulation, flexibility and
strength, while enhancing sleep quality. A regular yoga practice . . . has been shown to improve
the symptoms of many chronic diseases . . .”
        You have to look quite hard to find any reference on the website to anything even arguably
spiritual – CorePower’s answer to “What does ‘Yoga’ mean?” is: “Yoga can be traced back to
ancient India more than 5,000 years ago. Yoga is a Sanskrit word meaning to join, or yoke; a union.
Conceptually, yoga is the practice of fully uniting the body, mind and spirit.” The fact that plaintiff
was able to put its finger on one of these lonely references to one’s spirit or soul is not enough to
make an ad announcing the opening of a new studio an ad that promotes religion.

20      In its reply brief, plaintiff pointed to a third ad, supposedly purchased from WMATA by a
Christian radio station, WGTS 91.9. See Declaration of Michael F. Williams, Dkt. # 12–1 ¶ 3
(“Attached as Exhibit B is a true and correct copy of a photograph of a WMATA public bus on a
public thoroughfare displaying advertising for WGTS 91.1, a Christ-centered, nonprofit, listener-
supported media ministry serving the Washington, DC region, accessed over the Internet on
December 4, 2017 at http://columbiaunion.org/content/wgts-919s-history-timeline.”)




                                      Ex. B to Pl.’s Reply [Dkt. # 12–3]. But while the Declaration
states the date that counsel discovered the photograph on the internet, neither the Declaration nor
the link provides any information about where or when the picture was taken. And the bus did not
appear to be a red and grey Metrobus. Defendant subsequently submitted a declaration from
WMATA’s Assistant General Manager of Bus Services stating that, “The bus in the picture
[provided by plaintiff] is not a [WMATA] Metrobus. The number on the bus, “5359,” is not a
Metrobus number. The color scheme is not a Metrobus color scheme.”) Decl. of Robert O. Potts,
in Support of Def.’s Opp. [Dkt. # 13] ¶ 2.
                                                  32
 
    II.      Count Two: First Amendment Free Exercise of Religion

          The First Amendment to the Constitution includes the prohibition that, “Congress shall

make no law . . . prohibiting the free exercise” of religion. U.S. Const. amend. I. The Supreme

Court has made clear that this constitutional right “does not relieve an individual of the obligation

to comply with a valid and neutral law of general applicability on the ground that the law proscribes

(or prescribes) conduct that his religion prescribes (or proscribes).” Emp’t Div., Dep’t of Human

Res. v. Smith, 494 U.S. 872, 879 (1990), quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982)

(Stevens, J., concurring). So according to the principles set out in Smith, a neutral and generally

applicable law will survive a challenge under the Free Exercise clause. When assessing whether

a law is neutral and generally applicable, the two inquiries tend to overlap and “failure to satisfy

one requirement is a likely indication that the other has not been satisfied.” Church of Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–32, 546 (1993). A court is required to




                                         See id.
        Thereafter, the Court received another Declaration from Michael Williams, revealing that
he had transmitted to counsel for WMATA a link to a different website from May of 2016 in which
the writer congratulated WGTS for its “successful ad campaign in Washington, D.C.” Decl. of
Michael F. Williams [Dkt. # 14]. But the bus depicted on that webpage is also blue.
http://www.billscottgroup.com/2016/05/17/radio-station-bus-campagins/.
        Counsel for WMATA, to his credit, endeavored to research whether WMATA had ever
run the ad and informed the court in a declaration that “as best as WMATA has been able to
determine given the tight time frame, the WGTS ad was carried on WMATA’s buses in April
2017.” Decl. of Rex Heinke [Dkt. # 15] ¶ 8. (The webpage is from a year earlier.) While this
constitutes some evidence that WMATA may have accepted an advertisement from a religious
oriented radio station after the policy was in place, the evidence is quite thin and somewhat
contradictory, and since the advertisement itself provides no hint that it is coming from a religious
source, the Court is not persuaded that this additional potential fact tips the balance and undermines
any of the rulings set forth in this opinion.
                                                 33
 
apply the strict scrutiny test only when a law is either not neutral or not generally applicable. Id.

at 531–32, 546.

       A. Guideline 12 is neutral.

       “[I]f the object of a law is to infringe upon or restrict practices because of their religious

motivation, the law is not neutral.” Lukumi Babalu, 508 U.S. at 533. Here the Guideline is not

directed at any religious practice; it prohibits WMATA from publishing advertisements that

promote or oppose religion. Even if one were to characterize Guideline 12 as a policy that

“restricts” the “religious practice” of evangelization, because it makes buses unavailable for that

purpose, there is no showing that WMATA closed off an avenue for that practice “because of” any

religious motivation animating the ads. The policy relates to the ads’ content, and it imposed an

identical prohibition on advertisements that oppose religion, which are not likely to have a

religious aim. And the Guideline is part of a larger set of restrictions on controversial topics; it

does not single out religion. Cf. Lukumi Babalu, 508 U.S. at 545–46 (concluding that the city

ordinance prohibiting ritual animal sacrifice targeted the Santeria religion).

       Plaintiff complains that WMATA’s advertising space is a “unique public benefit” that is

being withheld from the Archdiocese on account of its religion, Pl.’s Reply at 6, and it points to

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017), which

prohibits the denial of a “generally available benefit solely on account of religio[n].” See Pl.’s

Reply at 6. But its use of this authority is misplaced, not only because WMATA’s advertising




                                                 34
 
space is not a “generally available benefit,” but also because there is no evidence of discriminatory

intent.21

        B. Guideline 12 is generally applicable.

        To be generally applicable, a regulation “cannot in a selective manner impose burdens only

on conduct motivated by religious belief.” Lukumi Babalu, 508 U.S. at 543. For the same reasons

that the Court found the policy to be neutral, it finds that it is generally applicable. Guideline 12

applies across the board to advertisements that touch on the subject matter of religion from any

perspective or motivation, and Guideline 12 is just one of several content-based restrictions placed

on the nonpublic forum. Plaintiff’s alleged examples of inconsistent and arbitrary enforcement

are unpersuasive for the reasons discussed under Count I. And so, the Court finds that Guideline

12 is generally applicable.

       C. Guideline 12 does not burden religious practice.

       There is also a lack of evidence that the Guidelines actually restrict or substantially burden

a religious belief or practice. “[T]he First Amendment is implicated when a law or regulation

imposes a substantial, as opposed to inconsequential, burden on the litigant’s religious practice,”

and accordingly, “this threshold showing must be made” to sustain a Free Exercise claim. Levitan

v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002). Plaintiff has not satisfied this. The Archdiocese

is free to spread its message throughout the Washington, D.C. metropolitan area, and its



21      The Court also rejects plaintiff’s contention that because the Guidelines implicate “both
free speech and free exercise, it is a ‘hybrid’ restriction subject to heightened scrutiny” under
Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. at 882. Pl.’s Mot at 20–21. For
this argument to prevail, plaintiff would need viable claims on both the Free Speech and Free
Exercise counts which it does not have. Henderson v. Kennedy, 253 F.3d 12, 19 (D.C. Cir. 2001)
(“[T]he combination of two untenable claims” does not add up to a tenable one because “in law as
in mathematics zero plus zero equals zero.”). Accordingly, heightened scrutiny is not applicable
here.


                                                 35
 
declaration reveals that it already utilized a number of private and public platforms, “includ[ing]

advertisements and materials for distribution in parishes within the Archdiocese, advertisements

for display in public places throughout the metropolitan area,” including transit shelters not owned

by WMATA, and an “integrated online campaign.” McFadden Decl. ¶¶ 3, 6.

           Because Guideline 12 is neutral and generally applicable and because plaintiff has not

established that the Guidelines impose a substantial burden, the Court finds that plaintiff is unlikely

to succeed on its Free Exercise count.

    III.      Count Three: Religious Freedom Restoration Act

           “Congress enacted RFRA in 1993 in order to provide very broad protection for religious

liberty.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760 (2014).22 To this end, RFRA

provides that the government “shall not substantially burden a person’s exercise of religion” unless

it can demonstrate that application of the burden to the person: “(1) is in furtherance of a

compelling governmental interest; and (2) is the least restrictive means of furthering that

compelling governmental interest.” 42 U.S.C. § 2000bb-1(a)–(b). The prohibition applies even if

the burden results from a rule of general applicability. Id. § 2000bb-1(a). “As amended by the

Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers ‘any




22     Congress responded to the Supreme Court’s ruling in Smith that the Free Exercise clause
did not constitutionally protect religious practices against burdens from neutral, generally
applicable laws, by enacting RFRA which offered broader protections. Hobby Lobby, 134 S. Ct.
at 2761 (“‘Laws that are “neutral” toward religion,’ Congress found, ‘may burden religious
exercise as surely as laws intended to interfere with religious exercise.’”), quoting 42
U.S.C. § 2000bb(a)(2) (internal edits omitted).


                                                  36
 
exercise of religion, whether or not compelled by, or central to, a system of religious belief.’”

Hobby Lobby, 134 S. Ct. at 2754, quoting 42 U.S.C. § 2000cc–5(7)(A).

       The federal government and the District of Columbia are bound by RFRA.                 See

id. § 2000bb–2(1); Potter v. Dist. of Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009). However,

because WMATA is an inter-state agency formed by the District of Columbia, Maryland, and

Virginia, defendants argue that RFRA does not apply to WMATA based on the decision in City of

Boerne v. Flores, 521 U.S. 507 (1997). Defs.’ Opp. at 26–27. In that case, the Supreme Court

ruled that the application of RFRA to the states exceeded Congress’s enforcement power under

the Fourteenth Amendment, and so RFRA could not constitutionally be applied to the states.

Flores, 521 U.S. at 536. Therefore, defendants argue, RFRA cannot be applied to WMATA

because it would “intrude upon Maryland’s and Virginia’s traditional state prerogatives over

transportation.” Defs.’ Opp. at 27. In Morris v. Wash. Metro. Area Transit Auth., the D.C. Circuit

ruled that Maryland’s and Virginia’s sovereign immunity was conferred upon WMATA, but that

was in the context of a suit for damages, and the Court has not yet ruled on whether the precedent

would apply to a case involving injunctive relief. 781 F.2d 218, 219 (D.C. Cir. 1986). But the

Court does not need to resolve this complicated issue because it finds for other reasons that the

Archdiocese is not likely to succeed on its RFRA claim.

       To successfully mount a RFRA challenge and subject government action to strict scrutiny,

a plaintiff must meet the initial hurdle of establishing that the government has substantially

burdened his religious exercise. Henderson v. Stanton, 76 F. Supp. 2d 10, 14 (D.D.C. 1999). Only

if that predicate has been established will the onus then shift to the government to show that the

law or regulation is the least restrictive means to further a compelling interest.

42 U.S.C. §§ 2000bb-1(b), 2000bb-2(3); Hobby Lobby, 134 S. Ct. at 2761. “A substantial burden



                                               37
 
exists when government action puts ‘substantial 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); see also Holt v. Hobbs, 135 S. Ct. 853, 862

(2015)23 (finding such a burden where a prisoner was forced to choose between shaving his beard

and thereby engaging in conduct that seriously violated his religious beliefs or facing serious

disciplinary action); Hobby Lobby, 134 S. Ct. at 2775 (2014) (concluding a substantial burden

existed where employers were required, under threat of severe economic penalties, to provide

insurance coverage for contraceptive methods that violated their religious beliefs).

       Thus, RFRA decisions turn on an element of compulsion, and here plaintiff is under no

pressure to do anything. The fact that plaintiff has a sincere belief in spreading the gospel is not

in dispute, but the existence of that belief, and even the sincere desire to act in accordance with it,

is not enough to sustain a claim. “[T]o make religious motivation the critical focus is to read out

of RFRA the condition that only substantial burdens on the exercise of religion trigger the

compelling interest requirement.” Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011), quoting

Henderson, 253 F.3d at 17 (internal edits omitted). Plaintiff does not cite to any binding Supreme

Court or Circuit precedent that would call for the invalidation of a law when plaintiffs are not

compelled, under the threat of either punishment or the denial of a benefit, to act.

       There is authority that points in the other direction, though. The D.C. Circuit has held that

when a restriction merely prohibits one of a multitude of methods of spreading the gospel, and it

does not “force[ ] [parties] to engage in conduct that their religion forbids” or prevent “them from

engaging in conduct their religion requires,” those parties are not “substantially burdened.”



23      Holt was brought under the Religious Land Use and Institutionalized Persons Act of 2000
(“RLUIPA”), see 42 U.S.C. § 2000cc et seq., but RLIUIPA is governed by the same standard set
forth in RFRA, and plaintiff cites to this case in support of its RFRA claim. See Pl.’s Mot. at 23.
                                                  38
 
Henderson, 253 F.3d at 16; see also Mahoney, 642 F.3d at 1122. In Henderson and Mahoney, the

plaintiffs challenged regulations that prevented individuals from selling t-shirts on the National

Mall and regulations that prohibited “chalking” the sidewalk in a particular location in front of the

White House. See Henderson, 253 F.3d at 13–14; Mahoney, 642 F.3d at 1115. Both sets of

plaintiffs argued that these regulations violated RFRA because they prevented plaintiffs from

following the religious requirement that they spread the gospel. See Mahoney, 642 F.3d at 1120;

Henderson, 253 F.3d at 15. The Court ruled that neither regulation imposed a substantial burden

because the regulations were, at most, “a restriction on one of a multitude of means” by which

plaintiffs could proselytize, and other alternative means were still available. Henderson, 253 F.3d

at 17; see also Mahoney, 642 F.3d at 1121–22. The Court specifically noted that neither case posed

a situation where “the regulation force[d the plaintiffs] to engage in conduct that their religion

forbid[]” or prevented “them from engaging in conduct their religion require[d].” Henderson, 253

F.3d at 16; see also Mahoney, 642 F.3d at 1121.

          As in Henderson and Mahoney, the Archdiocese is not substantially burdened by

WMATA’s policy because it does not compel the Archdiocese to act in a way that violates its

religion, nor does it prevent it from spreading the gospel through other means. Because plaintiff

has not established that WMATA’s Guidelines substantially burdened its religious exercise, the

Court finds that it is unlikely to succeed on this count.

    IV.   Count Four: Equal Protection

          Plaintiff’s Equal Protection claim is unlikely to succeed for the same reasons that its

inconsistent and discriminatory enforcement claim fails under Count I. Plaintiff alleges that

WMATA treated “similarly situated religious groups” differently in violation of Equal Protection

principles by rejecting the Archdiocese’s ad but accepting ads from the Salvation Army and



                                                  39
 
CorePower Yoga. Compl. ¶ 54; Pl.’s Mot. at 12, 18, 20. As discussed in Count I of the Court’s

analysis, the ads by the Salvation Army and CorePower Yoga do not promote or oppose any

religion, religious practice or belief. By contrast, plaintiff has made it abundantly clear in its briefs

and in oral argument that its ad seeks to “bring the Catholic faith to more believers” by buying ads

on government property. Pl.’s Mot. at 23. Therefore, it is not “similarly situated,” and the Court

concludes that plaintiff is unlikely to succeed on its Equal Protection count.

V.      Count Five: Due Process

        Plaintiff’s complaint alleges that WMATA’s Guideline 12 “deprives the Archdiocese of

liberty and property without due process.”          Compl. ¶ 56.      Neither the complaint nor the

memorandum identifies a liberty or property interest that has been compromised other than the

First Amendment rights plaintiff seeks to vindicate in Count I and Count II. At the hearing,

plaintiff agreed that for the purpose of the preliminary injunction motion, the due process should

be viewed as alleging just a deprivation of those rights. Since the Court finds that the plaintiff is

unlikely to prevail on Count I and II, it is also unlikely to prevail on the Due Process count.

VI.     Irreparable Harm

        Plaintiff argues in its motion that it will suffer irreparable harm if the Court does not issue

the requested injunctive relief. Pl.’s Mot. at 25. Plaintiff’s showing on this point is its assertion

that the loss of First Amendment freedoms constitutes irreparable injury. Id. Since plaintiff alleges

no other harm that it seeks to avert, its irreparable harm argument rises and falls with its merits

arguments. Since the Court has concluded that plaintiff’s constitutional and statutory rights have

not been violated, plaintiff has failed to demonstrate that it would suffer irreparable harm in the

absence of relief. Under those circumstances, it is not necessary for the Court to go on to the




                                                   40
 
question of whether WMATA would be harmed by the proposed injunction or where the public

interest lies.

                                         CONCLUSION

        Based on the information submitted by the parties, their representations made at the hearing

on December 5, 2017, and for the reasons set forth above, an order will issue denying the motion

for preliminary injunction.




                                              AMY BERMAN JACKSON
                                              United States District Judge
DATE: December 8, 2017




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