Monday, November 11, 2019

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.

5 comments:

Bess M said...

I disagree with Manning’s interpretation of this case and believe the WMATA is justified in its decision to deny the Archdiocese from purchasing an ad space because it was for religious material. I believe the issue at hand is the tension between free exercise and establishment and that the WMATA is correct in infringing on absolute free exercise in order to prevent establishment. The sole purpose of the Archdiocese campaign was to “remind people of the religious meaning of Christmas,” leading any reasonable observer that sees these ads on public transit to assume the establishment or support of Christian religion.

Sarah M. said...

While the WMATA's ad ban may seem hostile toward religion, the Archdiocese can advertise in many other ways and in other locations, and so there exists no substantial burden. Therefore, I disagree with the concluding opinion that the author makes. Their faith is not necessarily sacrificed because sharing advertisements specifically on the transit does not seem to be a religious duty. This situation contrasts with Cantwell v. Connecticut, in which the Cantwells proselytized as part of a religious duty, and so the violations placed upon them were unconstitutional. Allowing for some Christmas advertisements while banning others seems similar to the Lynch v. Donnelly case with the Christmas decorations. However, I also dissented in that case and do not find a strong argument here in support of the Archdiocese.

Carolyn M said...

I agree with Manning: the Archdiocese should be allowed to purchase advertisement space through WMATA (which is a non-federal government agency). I agree that the ad displayed in the metro system (which is government-owned) may imply an establishment of religion. However, these are paid advertisement spaces. Since the Archdiocese is willing to pay the price for the space, they should not be denied the ability to advertise through WMATA. I also agree that there is an issue with the government deciding which Christmas messages are acceptable and which ones are unacceptable, which leads to entanglement. The WMATA would absolutely be within its right to deny the Archdiocese the space to advertise if there were NO Christmas ads allowed at all.

Anonymous said...

I agree with Manning's opinion on this case. I also believe that this commercial ban was specifically hostile towards religion. It favored secularism over religion, even though Christmas is an inherently religious holiday. These ad spaces were also paid for by whatever business was placing the ad, so I would not consider it to be an endorsement of religion by the government.

Selby S. said...

While I agree with Manning's interpretation of the cases she presented, I'm gonna have to side with Bess. The WMATA has a right to turn down content if it is deemed religious, and after looking at the specific ad that was in question, I think this was the right move on their part. The ad says "Find the Perfect Gift" and depicts the Biblical scene of the shepherds on the hill with the star. If the ad had different graphics on it, I think it could be seen as a secular ad for commercial purposes, but with the specific depiction of a Biblical scene, the reasonable observer would see this as government endorsement of Christianity.