The problem began when the WMATA rejected the Archdiocese of Washington's request to buy advertising space for their ad centered on the idea of finding "The Perfect Gift." The advertisement, pictured below, was said to violate the WMATA's advertising policy adapted in 2015 to prohibit “advertisements intended to influence members of the public regarding an issue on which there are varying opinions” and “advertisements that promote or oppose any religion, religious practice, or belief.” Although the wording on the advertisement is not specific to religion, the WMATA argues the purpose of the advertisement still promotes religion, as it features images of silhouetted shepherds and sheep against a starry background. The link promoted on the ad, FindThePerfectGift.org, leads individuals to a website with a central message that "Jesus is the perfect gift" and a page containing Christmas Mass times in the local area.
The Archdiocese of Washington rejected this prohibition on the grounds that it violated their First Amendment rights, stating "[The ad] conveys a simple message of hope, and an invitation to participate in the Christmas season.” Chieko Noguchi, the Director of Media Relations for the Archdiocese, additionally clarified that the advertisement was specifically tailored to avoid any controversy stating, "Our other ads have a very similar image but contain a quotation from the Book of Luke. This is the simple one, just for Metro."
This case has some key similarities to Lynch v. Donnelly(1984), which ruled that a nativity scene in the city's Christmas display did not violate the Establishment Clause. The Archdiocese's Ed McFadden even touched on this point in a statement stating, "To borrow from a favorite Christmas story, under WMATA's guidelines, if the ads are about packages, boxes or bags ... if Christmas comes from a store ... then it seems WMATA approves, but if Christmas means a little bit more, WMATA plays Grinch." However, the difference between this case and the one at hand lies in the fact that the advertisement cannot be reasonably argued to have a secular purpose. If Christmas "means a little more," the government would be establishing a religion, as having this advertisement on public transportation might imply government endorsement. In Lynch v. Donnelly, the court was at the very least able to argue that the other Christmas symbols and their ability to draw customers to local shops fulfilled a secular purpose. In this case, however, the images are clearly non-secular and the central message of the advertisement is to find "the perfect gift" of Jesus this holiday season.
For this reason, I find the original ruling of the court, in which the advertisement rejection was upheld as constitutional, to be correct. In addition to the clearly non-secular purpose of the advertisement, allowing the advertisement to be featured would force tax-payers of other religions to pay money for government transit (that is forbidden from endorsing one religion) to promote religious messages they likely disagree with. By neutrally banning all religious messages on advertisements, the court is able to avoid the impossible task of distinguishing between what religious messages are appropriate and which ones are not if religious messages were allowed. This neutrality among all religions also follows the courts prior rationale that nonpublic forums need only to be viewpoint neutral. Lastly, I do not believe that disallowing a religious group to promote their message on public transportation is barring the "free exercise" of their religion. Even if proselytization is a key aspect of one's religion, there are other forums and places religious groups can do this if they wish too. The purpose of removing religious messages from advertisements is to keep peace in public forums, not to hinder religion, as the WMATA has previously rejected advertisements from Birthright Israel, PETA promoting a vegan lifestyle, and abortion pills.
Because of this, I believe it is clear that the holding the court originally came to in this case is the one that should prevail again in the Court of Appeals.
12 comments:
I agree with the argument that the WMATA should not publish directly religious ads of any kind since this forces tax dollars to directly fund the endorsement of a specific religion. In many court cases we have read, the court has upheld that the holiday season has secular symbols tied with Christmas, such as Santa Clause, candy canes, elves, etc. that no longer have religious meaning, and have been a part of American tradition and consumerism during the holidays. Therefore, the department store ads that denote holiday sales have a secular purpose and are constitutional. However, when looking at the intent of the ad, the purpose of the Archdiocese message is not to promote the holiday season, rather encourage all people to consider the “true" religious meaning behind Christmas, which many Americans who pay for public transportation do not align with. The holding of the court should prevail in the Court of Appeals.
I would like to bring up the issue of viewpoint discrimination because I believe that it is relevant here. Once the metro allows for advertisements to be shown by other parties, would it not be discriminating against a religious viewpoint to bar their advertisement and allow a secular advertisement. This could be seen as promoting a secular agenda. Moreover, if gift giving can be spoken about from a secular stance, it would be discriminatory to not allow religious viewpoints surrounding the idea of gift giving. The advertisement also is secular in nature and has a secular purpose of encouraging citizens to give back to those struggling in the community that the government is failing to provide sufficient care for. I would like to invoke Lambs Chapel v. Center Moriches Union Free School District as precedent. In this case the public school tried to deny a religious viewpoint from being shared when secular viewpoints were being allowed to discuss their views on the same subjects. There are secular ads about shopping for the holiday season that are paid for by stores in the metros all the time. Why should religious views on holiday shopping/ gifts be denied?
Though I agree Christmas has been drowned out by Black Friday Sales, "25 Days of Christmas" Marathon's, mall Santa Clauses', and the like, the intent in this ad is still clearly tied to religion. To me, the Archdiocese of Washington has a clear agenda to push. Having one of the most sacred holidays become such a commercialized American holiday, it's no wonder that he's trying to promote and bring back the true meaning of Christmas: the birth of Christ. Thus, there is a clear religious motive to try and persuade riders on public transportation to accept a commonly held Christian belief. Additionally, in terms of neutrality, WMATA could run a slippery slope in regards to entanglement. Though I recognize religious groups have the same right to free speech as any non-religious group, when their message is one of persuasion and denomination, there must be a line drawn. Therefore, I don't see WMATA or the Court of Appeals ruling as discriminatory, but rather, facially neutral in the eyes of religion.
While I think that it is a wise decision not to allow religious advertisement on public transit, I do not think it should be unconstitutional in this case. If a church wants to buy an advertisement, then they have the right to do so. The placing of an advertisement for religion that is paid for by a church is not an endorsement or establishment of religion, it is a group advertising a product (which happens to be a religious ideology). It should be noted that the First Amendment does not require the government to be hostile towards religion, and I believe that ruling this way creates hostility towards religion. If the Transit Authority wants to enact a policy that prohibits religious groups from advertising on their vehicles thats fine, but advertisement of religious origin on government vehicles in general which the government is not paid for should not be unconstitutional.
While I can understand how the total prohibition on religious messages may be viewed as hostile towards religion, I agree with those who view it as the best move the bureaucrats can make in a bad situation. If they allowed for any even slightly religious messaging on their public transportation vehicles, it would be brought to court as a governmental promotion of religion. The use of public transit to promote religion would be a direct aid towards religion and would have to be ruled unconstitutional due to rulings in cases such as Lemon V. Kurtzman or McCollum V. Board of Education. As we know, the government was prevented from providing direct aid towards the promotion of religion and barred from enacting policies which would create excessive entanglement. The only prudent move for the transit authority was a total prohibition on any religious message. It remains neutral towards messages both for and against religion, which is the definition of neutrality the courts have established. If this ad were allowed, the government would then have to decide the extent to which an ad is religious which would violate everything Madison hoped to prevent with the First Amendment.
While I believe that the court has an obligation to remain neutral and slightly secular in their decision making process, I believe that the advertisement should have been allowed to be put in the public transit. All companies and institutions hold the intention of trying to persuade customers to believe that their product is the best, and in this case that is still the case. The advertisement would be bought buy a purchaser (in this case the Archdiocese of Washington) and the advertisement itself preached consumerism more than it did Jesus, even if the company recognizes the true meaning behind Christmas. Christmas is a nationally recognized holiday, and is celebrated by many. To allow a company to try to make money off members of the public who celebrate the upcoming holiday, there is no form of bad intentions held by the company or a burden on society by the establishment of religion. I understand the counterargument that their is favoritism of a holiday, but I believe that the advertisement of holidays is not an immoral act.
If the WMATA was a private organization, like greyhound buses, they would have the right to dictate the content of speech advertised on their transportation; however, this is not the case. The WMTA is a government agency that offers advertising. As a government organization, by giving the public the opportunity to advertise, the WMATA has essentially established a limited public forum in the form advertisements on their public transportation. As seen in Rosenberger v. Univ. of Virginia, content or viewpoint based restrictions, even religious ones, are unconstitutional under the First Amendment.
Additionally, if Archdiocese is purchasing advertisements slots, I cannot see how the government is either aiding or promoting a religious viewpoint in any way. In my opinion, the Transit Authority has two options, they can either allow the religious based advertisements or restrict advertisements on public transportation all together.
I agree with Will that it is likely unwise to allow religious advertisement on public transportation, I do not think that it would be unconstitutional because WMATA is a public, government funded, organization. Due to the fact that this public transit is government funded, and they allow for the purchasing of advertisements from various groups, it would be a violation of the Free Exercise clause of the First Amendment if WMATA were to regulate the language and content of these advertisements. If the government is facially neutral in this case, they must allow the religious groups as well as any other groups to use their purchased advertisement as they wish. In many ways, this reminds me of the case where there was the question of the constitutionality of the invocations given before town board meetings. The Court claimed that if the government were to try to regulate the invocations in order to make them more secular, or more denominational, it would cause even more entanglement. I think that the same is true in this case.
I agree with Jill's point that the WMATA is constitutionally justified in rejecting the advertisement due to it's religious nature. The bus advertisements can be classified as a limited public forum. It set specific guidelines on the content allowed, which excluded religious messages, and stuck to said guidelines.
In response to Maxes point about Rosenberger vs. Virginia, the justices did deem viewpoint discrimination to be unconstitutional but they unanimously agreed (yes, even Scalia) that content discrimination was constitutional as long as the excluded content was not consistent with the content of the limited public forum. In the case at hand, the advert is being denied due to it's religious content instead of it's specific viewpoint.
I agree that the ruling to reject the advertisement is constitutional on the grounds that no religious advertisements are allowed. I believe this to be acting neutrally towards all religion however since the advertisement is paid for by the specific group and not taxpayers if the policy were reversed to allow all religions a fair and equal opportunity to apply for and purchase advertising space, that would be constitutional as well and arguably favorable as it would put religion and secularism on a level and truly neutral playing field.
I do not believe this to be view point neutral because another secular group could potentially post something that was not direct about their views. No one is forced to go this website and it also doesn't directly say something in reference to Jesus or the Judeo-Christian God. The symbols on the ad also aren't specifically religious. Stars and shepherds are secular pictures that are incorporated into a religious story that one would know if they had had more exposure to this religion than just this ad. Also if other religions had been allowed to place an ad tan this would be discrimination without a doubt.
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