Bench Memos

Law & the Courts

‘Find the Perfect Gift’

No, the title of this post isn’t promoting the New York Times bestseller Scalia Speaks. Rather, it’s the text of an advertisement that the Archdiocese of Washington proposed to run during Advent on the buses and subway cars of the Washington Metropolitan Area Transportation Authority. But WMATA rejected the ad (full image here) on the ground that it “depicts a religious scene and thus seeks to promote religion.”

The Archdiocese has sued WMATA for violating its First Amendment rights. I’m pleased to report that the Ethics and Public Policy Center (the think tank I head) has filed an amicus brief in support of the Archdiocese. An excerpt (citations omitted) from the brief:

[W]here, as here, the government seeks to suppress as noxious otherwise permissible speech because the speaker voices a religious perspective, the Supreme Court has repeatedly held that such religious viewpoint discrimination cannot be justified by any government interest and is virtually per se unlawful. WMATA’s refusal to permit the Archdiocese to post its otherwise unobjectionable advertisement was based entirely on the religious viewpoint behind the Archdiocese’s campaign. WMATA’s application of its advertising guidelines to the Archdiocese’s “Find the Perfect Gift” advertisement constitutes, among other things, invidious viewpoint discrimination in violation of the Free Speech Clause and an unlawful imposition on the Archdiocese’s religious liberties under the First Amendment’s Free Exercise Clause. WMATA’s decision cannot stand.

Many thanks to Shannen Coffin of Steptoe & Johnson for his generous pro bono representation of EPPC in this matter.

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