United States Court of Appeals
        FOR THE DISTRICT OF COLUMBIA CIRCUIT



               Filed On: December 21, 2018

                        No. 17-7171

  ARCHDIOCESE 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)


            On Petition for Rehearing En Banc


Before: Garland, Chief Judge; Henderson, Rogers, Tatel,
Griffith,* Srinivasan, Millett, Pillard, Wilkins, and Katsas,*
Circuit Judges
                         ORDER

        Appellant’s petition for rehearing en banc and the
response thereto were circulated to the full court, and a vote
was requested. Thereafter a majority of the judges eligible to
participate did not vote in favor of the petition. Upon
consideration of the foregoing, it is

       ORDERED that the petition be denied.

                        Per Curiam

                                     FOR THE COURT:
                                     Mark J. Langer, Clerk

                               BY:   /s/
                                     Ken Meadows
                                     Deputy Clerk



* Circuit Judges Griffith and Katsas would grant the petition.

A statement by Circuit Judge Griffith, with whom Circuit
Judge Katsas joins, dissenting from the denial of rehearing en
banc, is attached.
   GRIFFITH, Circuit Judge, with whom Circuit Judge
KATSAS joins, dissenting from the denial of rehearing en banc:

    We ought to rehear this case en banc because the panel
opinion conflicts with Supreme Court precedent on an issue of
exceptional importance: the freedom to speak from a religious
viewpoint. According to that precedent, the government in this
case violated the First Amendment by prohibiting religious
speakers from expressing religious viewpoints on topics that
others were permitted to discuss.

    The Washington Metropolitan Area Transit Authority
(WMATA) is a governmental entity that operates the Metrobus
public transportation system. During last year’s Christmas
season, the Roman Catholic Archdiocese of Washington, D.C.,
sought to run the following ad on the exterior of Metrobuses:




The proposed ad was part of the Archdiocese’s “Find the
Perfect Gift” campaign, whose purpose was “to share a simple
message of hope, welcoming all to Christmas Mass or in
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 Communications, Archdiocese of
Wash., ¶ 3 (Nov. 27, 2017). The campaign “invite[d] 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
                                 2
beyond.” Decl. of Susan Timoney, Sec’y for Pastoral Ministry
& Social Concerns, Archdiocese of Wash., ¶ 6 (Nov. 27, 2017).
To that end, the proposed ad included the address for the
campaign’s website, which provided schedules for local
Masses and described many opportunities for charitable
service. Archdiocese of Wash. v. WMATA, 281 F. Supp. 3d 88,
97 (D.D.C. 2017).

     WMATA rejected the ad, explaining to the Archdiocese
that the ad violated a policy adopted by its Board of Directors
prohibiting “[a]dvertisements that promote or oppose any
religion, religious practice or belief.” J.A. 115, 200. According
to WMATA, the ad ran afoul of that ban “because it depicts a
religious scene and thus seeks to promote religion.” J.A. 115.
During this litigation, WMATA further explained that its
decision was based not on the ad alone, but also on the website
referenced in the ad, which “contained substantial content
promoting the Catholic Church,” including “a link to ‘Parish
Resources,’” “a way to ‘Order Holy Cards,’” and “videos and
‘daily reflections’ of a religious nature.” Decl. of Lynn
Bowersox, WMATA Assistant Gen. Manager for Customer
Service, Communications & Marketing, ¶¶ 19-20 (Dec. 1,
2017).

     When the Archdiocese challenged WMATA’s decision,
the district court upheld the decision, as did a panel of this court
on appeal. Archdiocese of Wash. v. WMATA, 897 F.3d 314,
320-21, 335 (D.C. Cir. 2018).1 The panel found that advertising
space on a Metrobus is a non-public forum and held that


1
     Judge Rogers authored the panel opinion, which Judge Wilkins
joined. Then-Judge Kavanaugh was a member of the panel when the
case was argued, but he did not participate in the opinion owing to
his nomination to the Supreme Court. See Archdiocese, 897 F.3d at
318, 335.
                                3
WMATA’s policy was permissible                under    the    First
Amendment. Id. at 322-23, 335.

      Supreme Court precedent, however, instructs otherwise. In
interpreting the First Amendment, the Court has long held that
the government may place reasonable restrictions on the
subjects discussed in a non-public forum, but the government
may not impose restrictions based on a speaker’s viewpoint.
See Minnesota Voters All. v. Mansky, 138 S. Ct. 1876, 1885
(2018); Cornelius v. NAACP Legal Def. & Educ. Fund, 473
U.S. 788, 806 (1985). In the context of religious speech, the
Supreme Court has three times considered restrictions
indistinguishable from the WMATA policy challenged here. In
all three cases, the government argued, as WMATA does here,
that the restrictions were permissible because they prohibited
all views on a discrete subject: religion. In all three cases, the
Supreme Court rejected that argument because the restrictions
did more than attempt to ban the discussion of religion; they
also barred the expression of religious viewpoints on topics
that were otherwise permitted to be discussed. This case is no
different, for WMATA’s policy barred the Archdiocese from
speaking from a religious viewpoint on subjects others were
permitted to discuss, such as charitable giving and how best to
spend one’s time and money during the Christmas holiday.

     In Rosenberger v. Rector & Visitors of the University of
Virginia, the University of Virginia funded all sorts of
extracurricular activities for students, but not the publication of
a Christian magazine. 515 U.S. 819, 825-26 (1995). Such
funding was prohibited by a university policy that excluded
“religious activities,” defined as any activity that “primarily
promotes or manifests a particular belie[f] in or about a deity
or an ultimate reality,” which the University and the Supreme
Court understood to bar not only speech that promoted religion
but also speech that opposed religion. Id. at 825, 836-37. The
                                4
University argued that a policy that excluded all discussion of
religion was a permissible restriction in a non-public forum. Id.
at 830-31. But the Court found that the policy’s “very terms”
did not simply “exclude religion as a subject matter.” Id. at 831.
Instead, the policy barred religious views on otherwise-
permissible subjects. Id.

     To be sure, much of the magazine’s content was religious.
According to the magazine’s mission statement, its purpose
was “to challenge Christians to live, in word and deed,
according to the faith they proclaim and to encourage students
to consider what a personal relationship with Jesus Christ
means.” Id. at 826. And the magazine published articles on
such religious topics as prayer, sacred music, Christian
missionary work, and the devotional writings of C.S. Lewis.
Id. But importantly, the magazine also published commentary
from a religious viewpoint on topics such as racism, and it was
the restriction of such expression that violated the First
Amendment. “Religion,” the Court explained, provides “a
specific premise, a perspective, a standpoint from which a
variety of subjects may be discussed and considered.” Id. at
831. “If the topic of debate is, for example, racism, then
exclusion of several views on that problem is just as offensive
to the First Amendment as exclusion of only one. It is as
objectionable to exclude both a theistic and an atheistic
perspective on the debate as it is to exclude one, the other, or
yet another political, economic, or social viewpoint.” Id.

     In two other cases, the Supreme Court likewise rejected
governmental decisions that barred religious expression much
like WMATA’s policy does. In Lamb’s Chapel v. Center
Moriches Union Free School District, the Center Moriches,
New York, school district made school facilities available for
after-hours public use, specifically “social, civic, or
recreational uses” and certain “use[s] by political
                                5
organizations,” but banned use “by any group for religious
purposes.” 508 U.S. 384, 387 (1993). Relying on this ban, the
school district refused to permit Lamb’s Chapel, an evangelical
church, to use school facilities to show a film series by Dr.
James Dobson on instilling “traditional, Christian family
values” in one’s children. Id. at 388. According to a unanimous
Supreme Court, the school district’s decision was
impermissible viewpoint discrimination because the proposed
film series “dealt with a subject otherwise permissible” in the
forum: family issues and child rearing. Id. at 393-94; see id. at
397 (Kennedy, J., concurring in part); id. (Scalia & Thomas,
JJ., concurring in the judgment). Even though the ban treated
“all religions and all uses for religious purposes . . . alike” by
excluding all of them, the “critical” point remained that “it
discriminates on the basis of viewpoint to permit school
property to be used for the presentation of all views about
family issues and child rearing except those dealing with the
subject matter from a religious standpoint.” Id. at 393.

     A similar ban led to Good News Club v. Milford Central
School, 533 U.S. 98 (2001). There, the Milford, New York,
school district opened school facilities for after-hours public
use, including for “social, civic and recreational meetings,” but
banned use “by any individual or organization for religious
purposes.” Id. at 102-03. Accordingly, the school district
refused to allow the Good News Club, a local Christian
organization for children, to use school facilities for meetings
where the children would pray, memorize scripture verses,
learn Bible lessons, and “cultivate their relationship with God
through Jesus Christ.” Id. at 103, 111. In the words of the
school district, the Club’s activities were “the equivalent of
religious worship” and “the equivalent of religious
instruction.” Id. at 103. Despite the undeniable religious nature
of these activities, the Supreme Court held that applying the
ban to the Club was viewpoint discrimination because the Club
                               6
also sought to address an otherwise-permissible subject—the
teaching of morals and character—from a religious standpoint.
Id. at 108-09. The Court explained, “[R]eligion is used by the
Club in the same fashion that it was used by Lamb’s Chapel
and by the students in Rosenberger: Religion is the viewpoint
from which ideas are conveyed.” Id. at 112 n.4 (emphasis
added). “We did not find the Rosenberger students’ attempt to
cultivate a personal relationship with Christ to bar their claim
that religion was a viewpoint. And we see no reason to treat the
Club’s use of religion as something other than a viewpoint
merely because of any evangelical message it conveys.” Id.

      WMATA’s         policy    against    religious    ads    is
indistinguishable from the restrictions in Rosenberger, Lamb’s
Chapel, and Good News Club. All four restrict speech based on
its religious purpose: WMATA prohibits speech that
“promote[s] or oppose[s] any religion, religious practice or
belief,” while the Supreme Court cases involve restrictions
barring speech “for religious purposes” (Lamb’s Chapel and
Good News Club) and speech that “promotes or manifests a
particular belie[f] [including non-belief] in or about a deity or
an ultimate reality” (Rosenberger). Such restrictions, the
Supreme Court has held, amount to viewpoint discrimination
when they bar speech on an otherwise-permissible subject.
That’s what WMATA’s policy does. WMATA allows entities
like Walmart to speak on the subjects of the perfect Christmas
gift (toys) and how to spend the Christmas season (buying gifts
and visiting stores at specified hours). And WMATA permits
the Salvation Army to run ads encouraging people to donate to
certain charities. The Archdiocese would also like to express
its views on the perfect Christmas gift (Christ), how to spend
the holiday (caring for the needy and visiting churches for
Mass at specified hours), and whether to contribute to charities
(yes, and particularly to religious charities). By barring the
Archdiocese from doing so, WMATA’s policy discriminates
                                 7
against religious viewpoints no less than the restrictions in
Rosenberger, Lamb’s Chapel, and Good News Club.

     I am not persuaded by the panel’s efforts to distinguish
these precedents. First, the panel emphasizes that the ad “is not
primarily or recognizably about charitable giving, as it is not
primarily or recognizably about opening hours or places to
visit”; rather, it 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.” Archdiocese, 897 F.3d at 329. The
ad’s imagery “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.” Id. But the same
could’ve been said in Good News Club and Rosenberger,
where the restricted speech was “quintessentially religious”
and “decidedly religious in nature” with an “evangelical
message.” Good News Club, 533 U.S. at 111-12 & n.4; see
Rosenberger, 515 U.S. at 826. Even though the speech in those
cases was primarily about religion, the Supreme Court rejected
the restrictions for barring religious viewpoints on topics other
than religion.2

2
     Other circuits read these Supreme Court cases in the same way.
See Grossbaum v. Indianapolis-Marion Cty. Bldg. Auth., 63 F.3d
581, 588, 590-92 (7th Cir. 1995) (based on Rosenberger, holding that
a purported ban on the subject of religion violated the First
Amendment by barring religious views on an “otherwise includible
subject”—the “holiday season”—while allowing “non-religious”
views); see also Byrne v. Rutledge, 623 F.3d 46, 56-57 (2d Cir. 2010)
(based on Rosenberger and Good News Club, rejecting a “ban on
religious messages” because it “operate[d] not to restrict speech to
certain subjects but instead to distinguish between those who seek to
express secular and religious views on the same subjects”); Summum
v. Callaghan, 130 F.3d 906, 917-18 (10th Cir. 1997) (“In
Rosenberger, the Court clarified the distinction between content-
                                 8
     The panel further attempts to distinguish the Supreme
Court precedents as involving broader forums for “educational
purposes” and “social, civic and recreational meetings.”
Archdiocese, 897 F.3d at 327. “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.” Id. But in any First Amendment
forum, no matter its scope, viewpoint discrimination always
violates the First Amendment. Limiting the scope of the forum
does not make it more amenable to such discrimination. Nor
must a forum serve broad “educational purposes” and “invite
debate” in order to trigger constitutional protections from
viewpoint discrimination. Good News Club, for example,
involved a classroom in a public school that could be used by
groups that had no intention to engage in debate among
themselves or with others. See 533 U.S. at 103, 108.

     In addition, the panel reads Rosenberger as affirming
WMATA’s view that it “retain[s] the prerogative to exclude
religion as a subject matter.” Archdiocese, 897 F.3d at 325.
Rosenberger, the panel points out, suggested that the
University policy might have been constitutional if it had
“exclude[d] religion as a subject matter.” Id. at 325-26 (quoting
Rosenberger, 515 U.S. at 831). The panel opinion asks too
much of this phrase, for the Supreme Court later explained,
“[I]n Rosenberger there was no prohibition on religion as a
subject matter, [but] our holding did not rely on this factor.”
Good News Club, 533 U.S. at 110. In any event, as already
discussed, the University policy in Rosenberger and the

based and viewpoint discrimination and adopted a broad
construction of the latter, providing greater protection to private
religious speech on public property”: Accordingly, if “the
government permits secular displays on a nonpublic forum, it cannot
ban displays discussing otherwise permissible topics from a religious
perspective.” (citation omitted)).
                                  9
WMATA policy are indistinguishable, so both policies—by
their “very terms”—“do[] not exclude religion as a subject
matter.” Rosenberger, 515 U.S. at 831. Therefore, even if the
government could craft a different regulation that validly
excludes all discussion on the subject of religion, WMATA did
not do so here.

     Finally, the panel fears that the Archdiocese’s position
“eviscerate[s] . . . the long-standing recognition that the
government may limit a non-public forum to commercial
advertising.” Archdiocese, 897 F.3d at 329. That issue is not
presented here, for WMATA permits both commercial and
non-commercial ads. And the Archdiocese’s position does not,
as the panel states, “eviscerate the distinction between
viewpoint-based and subject-based regulation on which the
forum doctrine rests.” Id. As I see it, this case does nothing
more than present us with an issue already decided by the
Supreme Court: whether the government can prohibit a
religious viewpoint on subjects it allows others to discuss
without restriction. Recognizing that the governmental entities
in Rosenberger, Lamb’s Chapel, Good News Club, and this
case unlawfully restricted religious viewpoints says nothing
about the government’s general ability to impose subject-based
restrictions.3

3
     In the alternative, the Archdiocese argues that a categorical ban
on the subject of religion would still violate the First Amendment
because it is unreasonable for WMATA to prohibit all religious
speech based on concerns like avoiding community discord. See Pet.
for Reh’g En Banc 15-17; Appellant’s Br. 26-30; Mansky, 138 S. Ct.
at 1885. WMATA was concerned about the public response to ads
on controversial issues, but as the Archdiocese points out,
WMATA’s policies separately address issue-oriented ads without
any need for its ban on religious speech. See Appellant’s Br. 28; Am.
Freedom Def. Initiative v. WMATA, 901 F.3d 356, 373 (D.C. Cir.
2018). And although WMATA had “security concerns” about a
                                  10
     WMATA, like the University of Virginia and the New
York school districts, violated the First Amendment by
rejecting religious speech on otherwise-permissible subjects. I
therefore respectfully dissent from the decision not to rehear
this case en banc.




proposed ad depicting the Prophet Mohammed, as “some Muslims
consider drawing the Prophet Mohammed so offensive that they
have reacted violently . . . in the past,” Archdiocese, 897 F.3d at 319-
20, 330, the Archdiocese argues that WMATA could consider
rejecting such an ad based on WMATA’s other policies or on the
ground that it could incite violence, see Appellant’s Br. 28.

       Relatedly, the Archdiocese argues that WMATA’s ban violates
the First Amendment by excluding religious speech simply because
it is religious. See id. at 37-42; Archdiocese, 897 F.3d at 330-31. At
oral argument, WMATA conceded that it could not ban speech
promoting or opposing a particular religion. See Oral Arg. Tr. 34
(Mar. 26, 2018). Banning all religious speech may be equally
unconstitutional. See, e.g., id. at 34-35 (Judge Kavanaugh: “[H]ere’s
the problem which I see at the heart of this, which is it is believed
that discriminating against all religions is okay, discriminating
against individual religions [is] not okay, but the Supreme Court has
said that’s wrong, that to discriminate against Catholicism,
Protestantism, Mormonism, Islam, Judaism as a class is
discrimination against religion, and that[,] in the words of the Chief
Justice last year for six Justices[,] is ‘odious to our Constitution.’”
(quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 137
S. Ct. 2012, 2025 (2017))). Although the Archdiocese’s alternative
arguments are significant, I do not believe the en banc court needs to
address them because Lamb’s Chapel, Rosenberger, and Good News
Club resolve this case.
