WMATA Advertising Policy Bans Religious Speech

Every year, the Archdiocese of Washington, D.C. conducts a holiday campaign called ‘Find the Perfect Gift’. According to Becket Law, the purpose of this campaign is “to remind people of the religious meaning of Christmas and to invite them to give to those in need.” Part of the campaign includes sharing advertisements, including on the Washington Metropolitan Area Transit Authority (WMATA) buses and metro. In 2017, WMATA denied the Archdiocese from purchasing an ad space because it was for religious material. WMATA justified this decision based on a new ad policy, which “bans any ad deems controversial, including political, advocacy, and religious advertising.” Another important detail in this case is that the policy regarding Christmas advertising was nuanced. The Becket article explains: “Ads about the secular or commercial meaning of Christmas [e.g., department store sales] were permitted, whereas religious ads encouraging generosity and service during the holiday season were prohibited…” The Archdiocese sued WMATA for infringing on their free speech rights. In July 2018, The D.C. Circuit upheld WMATA’s policy allowing for the ban on religious advertising. The Archdiocese appealed the case to SCOTUS in May 2019.

The three main issues related to religion and constitutional law are questions of establishment, limits of an open public forum, and the tension between free exercise and establishment. I ultimately argue that the Court should strike down WMATA’s advertising policy as it is unconstitutional. I will support this by following the precedent set in Lemon v. Kurtzman, Widmar v. Vincent and Locke v. Davey.

First, it is important to look at the policy in the context of the Lemon test. This controversial test is used by the Court to determine whether something constitutes a government establishment of religion. The three prongs are: “the law must (1) have a legitimate secular purpose, (2) not have the primary effect of either advancing or inhibiting religion, and (3) not result in an excessive entanglement of government and religion” (Muñoz, 179). The WMATA policy in question clearly violates the second prong of this test, as its primary effect inhibits the Archdiocese (the Catholic faith) from expressing otherwise acceptable messaging. The policy is not neutral between religion and non-religion (secularism).

Another important part of this case is how religious liberties are protected in a public open forum. In Widmar v. Vincent, the Court held that when the U.S. government provides an open forum (such as an advertising space on the D.C. metro), it can’t discriminate against the content that takes place within that forum on the basis of the viewpoint it expresses. This includes religious speech. The WMATA policy clearly violates this precedent.

 An additional relevant case to consider is Locke v. Davey (a summary of the case can be found here for those unfamiliar). This case is one in which free exercise rights are in tension with the Establishment clause of the First Amendment. The majority in the case argued that if the university HAD allowed Locke to use the scholarship to study theology, that would have been constitutional (i.e., not considered establishment); however, the school NOT allowing Locke to study theology was not unconstitutionally burdensome to his free exercise. I agreed with the dissent in this case as the policy was hostile towards religion. Similarly, the WMATA policy banning religious speech is unconstitutionally burdensome to the Archdiocese's right to freely exercise religion. The Supreme Court could take this case as opportunity to overturn the precedent set in Locke v. Davey.

An important implication of this decision is related to government regulating content. As was previously mentioned, WMATA allowed for certain kinds of Christmas advertisements, but not others. This could be a really slippery slope if the government is determining what kind of content is religious.

In summary, I presented the basic information regarding the facts of the case. Then, I identified three relevant cases which have set precedent for the issues present in this case (establishment, the use of public forums and the tension between free exercise and establishment). The policy in question violates the Lemon test because its primary effect inhibits religion. Additionally, the Archdiocese should not be discriminated against for seeking to promote religious content in an open forum. I believe that the Archdiocese should be able to advertise in the WMATA; even though the First Amendment does not always protect actions based on religious convictions, there is not a compelling state interest to prohibit the Archdiocese from advertising.